[00:00:04] Speaker 02:
Sam straight on behalf of appellant three form may please the court.

[00:00:08] Speaker 02:
There are two fundamental reasons to reverse the trial court summary judgment on herency.

[00:00:13] Speaker 02:
First, there is unrebutted expert testimony that at least one panel that's deposition exhibit 421 produced by Luma course expert following the Schober process did not have a substantially natural appearing confirmation under Nova farm.

[00:00:27] Speaker 02:
The case should be reversed right there because they do not have clear and convincing evidence that following Schober

[00:00:33] Speaker 02:
every time produces panels with naturally appearing confirmations.

[00:00:38] Speaker 02:
And Dr. Gattrow, a three-forms expert in his deposition, described the reasons why.

[00:00:43] Speaker 02:
And that's at the appendix, pages 743 to 45, also quoted in our reply brief.

[00:00:48] Speaker 02:
He explained in detail that there was splitting and cracking in the compressible objects that were in that exhibit 421.

[00:00:55] Speaker 02:
And as soon as you have that expert testimony, that creates a genuine issue of material

[00:01:00] Speaker 02:
that the court resolved against three-form, on summary judgment, on a clear and convincing evidence standard.

[00:01:06] Speaker 02:
And based on that alone, the case should be sent back.

[00:01:09] Speaker 04:
In addition, Dr. Flynn, who was- Do we have that particular rendition, if you will, in the record?

[00:01:17] Speaker 04:
Where is that?

[00:01:18] Speaker 04:
Do you have a picture of that?

[00:01:19] Speaker 02:
I don't think the picture is in there.

[00:01:20] Speaker 02:
The testimony is at 743 to 45, but the picture itself of deposition exhibit 421, I don't believe is in the appendix.

[00:01:28] Speaker 02:
In addition, Dr. Flynn, who was LUMICOR's expert, did a test too.

[00:01:34] Speaker 02:
And on the Madagascar decor, again a compressible object, under that test too, it had so many cracks and splits at the cross points that he reported over 80% of them were damaged.

[00:01:46] Speaker 02:
They cannot demonstrate that the Schober 327 process will result every time in a substantially naturally appearing panel under those facts.

[00:01:54] Speaker 02:
And all of the arguments that come back to the contrary are classic fact disputes that the district court should not have resolved on a summary judgment clear and convincing evidence standard against 3-4.

[00:02:06] Speaker 02:
In addition, and this is on the 700 inheritance, Lumicor has no evidence to invalidate claims 5 and 16, which concern polycarbonate.

[00:02:17] Speaker 02:
Why?

[00:02:17] Speaker 02:
Because Lumicor did no testing using polycarbonate.

[00:02:21] Speaker 02:
How can you establish clear and convincing evidence

[00:02:23] Speaker 02:
that a test panel with polycarbonate will result in a substantially natural-appearing confirmation every time when you did no testing.

[00:02:31] Speaker 02:
There's a reason that this court in Trintec said that inherency cases are quite rare.

[00:02:36] Speaker 02:
And I would submit, inherency cases on summary judgment are even rarer because of that identity requirement that's required.

[00:02:43] Speaker 02:
And Lumicor, in this case, has failed to satisfy and meet that burden.

[00:02:49] Speaker 02:
Now with respect to obviousness, the district court also found that the 700 patent, the remaining claims that call out PETG as the resin, that those were also, those were therefore obvious and granted summary judgment in that regard in validating those claims of the patent.

[00:03:08] Speaker 02:
That decision should also be reversed because number one, the district court expressly relied on his anticipation finding to invalidate those PETG claims.

[00:03:19] Speaker 02:
But second, three forms expert witness, Dr. Gautreaux, testified that there was no motivation to combine the teachings of the 327 patent with PETG.

[00:03:31] Speaker 02:
Once you have that expert testimony, it creates fact issue that the jury should have been allowed to define.

[00:03:38] Speaker 00:
Did your experts tests, they were not admitted, right?

[00:03:42] Speaker 02:
The experts test, that is correct, Your Honor, and that's a very important distinction

[00:03:47] Speaker 02:
only his tests and a very small portion of his expert report related to tests, he gave pages and pages of other testimony that was not excluded that related to other... And you're not relying on the tests, Roger, you're talking about a genuine issue of material effect.

[00:04:02] Speaker 00:
Now, where in the record did you, either through attorney argument or through your expert, in any way respond to the tests that were done by Lumicor's

[00:04:13] Speaker 00:
and question no.

[00:04:14] Speaker 02:
And Your Honor, that specifically goes back to Exhibit 421, where Dr. Gottrow is presented in his expert deposition.

[00:04:23] Speaker 02:
Here's Exhibit 421.

[00:04:25] Speaker 02:
This is a panel that was produced following the Schooper process.

[00:04:30] Speaker 02:
Take a look at this.

[00:04:31] Speaker 02:
Is this a substantially natural appearing confirmation or not?

[00:04:34] Speaker 02:
Dr. Gottrow testified it is not, and he identified the reasons why.

[00:04:39] Speaker 02:
Council showed Dr. Gotso.

[00:04:41] Speaker 00:
Wasn't that done using test five, though?

[00:04:44] Speaker 00:
And test five wasn't the Schober method?

[00:04:46] Speaker 00:
So how is that reliable?

[00:04:48] Speaker 02:
I think it's, first of all, there's no dispute.

[00:04:52] Speaker 02:
And we didn't challenge reliability of Dr. Flynn's.

[00:04:56] Speaker 00:
How is that relevant?

[00:04:57] Speaker 00:
Forget about my word.

[00:04:58] Speaker 00:
I should have said relevant.

[00:04:59] Speaker 02:
And Your Honor, it's directly relevant for two reasons.

[00:05:01] Speaker 02:
Number one, it still follows the Schober process to this extent.

[00:05:05] Speaker 02:
40 PSI for the first, bump the press, open the press,

[00:05:09] Speaker 02:
and then 120 psi on the back end.

[00:05:12] Speaker 02:
Dr. Flynn, their expert, said that there's no material difference between using 120 as the second pressure and 160 with respect to the deformation.

[00:05:22] Speaker 00:
And in fact, Your Honor, if you're using... But he was relying on test two, right?

[00:05:26] Speaker 00:
Wasn't he relying on test two?

[00:05:27] Speaker 02:
No, but with respect to test five.

[00:05:29] Speaker 02:
So test two is the Madagascar where he testified about the cracks and crushes and splits.

[00:05:36] Speaker 02:
Test five

[00:05:37] Speaker 02:
He said in his expert report that there is no difference.

[00:05:42] Speaker 02:
It's indistinguishable.

[00:05:43] Speaker 02:
And that's in his expert report, appendix at 834.

[00:05:46] Speaker 02:
He says if you use this lower pressure, 120, on the back end of this process, the result you're going to get in terms of the substantial natural appearance is going to be indistinguishable if you use 160.

[00:05:58] Speaker 02:
And frankly, Your Honor, it helps prove our point, because 160, you would assume, would have more deformation.

[00:06:04] Speaker 02:
less natural confirmation.

[00:06:06] Speaker 02:
So the fact that it used 120 just proves the point that when they're using the Schober process, you're going to get at least one or two panels that do not have a substantially natural appearing confirmation.

[00:06:18] Speaker 02:
And as soon as we have that, summary judgment should not have been granted, and it should have been sent back.

[00:06:24] Speaker 02:
Then with respect to obviousness on PETG, as I said, there was no motivation to combine.

[00:06:30] Speaker 02:
Our expert testified.

[00:06:32] Speaker 02:
And the sole purpose of Schober's two-step process, as described in the 327 patent, was to end up with a solitary, unitary panel that didn't have defects in the matrix of the panel, so that the plastic didn't have bubbles or cracks or things like that.

[00:06:49] Speaker 02:
There is no mention whatsoever in the Schober patent about an effort to maintain a natural confirmation of any of the products that are inside and embedded within the plastic.

[00:07:01] Speaker 02:
So on appeal,

[00:07:02] Speaker 02:
Lumicore argues that, well, if you look at the difference between our provisional and our utility application, we added the second pressure step in our utility application.

[00:07:13] Speaker 02:
Therefore, it must have been to go and address this issue of compressible objects.

[00:07:18] Speaker 02:
But the record simply doesn't support that for one reason.

[00:07:21] Speaker 02:
The provisional application and the utility application both include the only item that Lumicore is arguing is compressible, namely twigs.

[00:07:31] Speaker 02:
So if twigs are in the provisional application and you're only using one pressure, twigs are also in the utility application and you're using two pressures, the second pressure can't have anything to do with preserving a substantially natural confirmation.

[00:07:46] Speaker 02:
And when you look at the language of the patent, there's not one word in that patent that says what we're trying to do here is make sure twigs or anything else maintains a natural confirmation.

[00:07:57] Speaker 02:
And finally, with respect to PETG, the district court didn't rely.

[00:08:01] Speaker 02:
on tests that were done by Mr. Schober, the owner of Lumicor.

[00:08:07] Speaker 02:
So there's no record for this court to review on PETG.

[00:08:11] Speaker 02:
Combine that with the lack of a motivation to combine that our expert testified to, and summary judgment must be reversed.

[00:08:19] Speaker 02:
Finally, with respect to the 068 design patent, the district court also made fundamental errors on summary judgment, again, clear and convincing standards.

[00:08:29] Speaker 02:
because Three Forms' expert testified that her conclusion that one of ordinary skill in the art would not replace the reeds that are in the design patent of the 068 with the grasses that are illustrated in the 327 patent.

[00:08:44] Speaker 02:
And it wasn't a conclusory opinion.

[00:08:47] Speaker 02:
She gave detail that there is a distinct visual impression between reeds that you see in the 068 and grass that you see in Schober.

[00:08:56] Speaker 02:
And what she specifically said is,

[00:08:59] Speaker 02:
Grass panels don't have nodes like reed panels do.

[00:09:02] Speaker 02:
The 068 patents density is greater.

[00:09:04] Speaker 02:
And she directly responded in her expert rebuttal report to Mr. Schober's testimony that all one of skill in the art would have to do is look at his patent and substitute in grass for reed.

[00:09:18] Speaker 02:
And she specifically said that argument does not hold up.

[00:09:22] Speaker 02:
Now, a jury might see this one way or the other.

[00:09:25] Speaker 02:
But the critical point here is this kind of record is not appropriate to grant summary judgment on a clear and convincing evidence standard.

[00:09:33] Speaker 03:
One question.

[00:09:34] Speaker 03:
In your brief, you have a section devoted to claim construction.

[00:09:38] Speaker 03:
But you haven't argued it here.

[00:09:41] Speaker 03:
Neither here nor there.

[00:09:44] Speaker 03:
Do you feel we can decide this case without getting into the claim construction issue?

[00:09:49] Speaker 02:
I think we could, Your Honor.

[00:09:50] Speaker 02:
We do think there was error in the claim construction.

[00:09:54] Speaker 02:
I believe the errors in the claim construction help inform why some of this critical evidence that we've outlined in the briefs and here today was overlooked by the district court.

[00:10:03] Speaker 02:
When he mistakenly construed, and I don't think Luma Corp really... Why do you think we can decide the case without getting into the claim construction?

[00:10:11] Speaker 02:
Because regardless of how you look at substantially natural appearing confirmation, our experts say

[00:10:20] Speaker 02:
that there's a panel out there that was created consistent with Schober that doesn't have a substantially natural appearing confirmation, regardless of what the claim construction ends up being.

[00:10:30] Speaker 02:
We think that the district court was incorrect in the claim construction.

[00:10:33] Speaker 02:
Luma Court doesn't argue to the contrary.

[00:10:35] Speaker 02:
Luma Court just says, well, it's irrelevant, because it doesn't matter to the rest of the decision.

[00:10:39] Speaker 02:
We think it does help provide and inform why the district court overlooked this testimony about unnatural confirmations.

[00:10:47] Speaker 02:
And this testimony from Dr. Flynn's tests

[00:10:50] Speaker 02:
because the district court wasn't thinking about or had excluded in his mind cracks and splits in the natural decors as substantially unnatural.

[00:11:00] Speaker 02:
In addition to the summary judgment factual issue decided against three form on summary judgment, the district court also made legal errors with respect to the way it analyzed the 068 design patent, specifically

[00:11:17] Speaker 02:
the district court chose a primary reference that was never identified by the parties as such.

[00:11:22] Speaker 02:
Lumicor identified, and the parties briefed, Schober as the primary reference.

[00:11:29] Speaker 02:
And when you look at the district court's opinion, under the district court's analysis, a patentee, like Three-Form in this case, would have to analyze every item that was even mentioned in briefings

[00:11:40] Speaker 00:
What about page 10?

[00:11:42] Speaker 00:
Wasn't it listed as a possible primary reference in the record of page A517?

[00:11:48] Speaker 00:
When I read that, and I think it's referring to this as a possible reference, it even has a picture of it as being one of the possible primary references.

[00:11:56] Speaker 02:
But it doesn't say possible primary reference.

[00:11:58] Speaker 02:
What it says is these designs are all basically the same.

[00:12:01] Speaker 02:
But what LUMICOR briefed was the primary reference is Schober.

[00:12:05] Speaker 02:
And so the party's briefed, here's the primary reference, it's Schober.

[00:12:09] Speaker 02:
It was a surprise to all of us, I believe, that the district court instead chose exhibit five to be the primary reference when the parties had briefed something else as the primary reference.

[00:12:18] Speaker 02:
And finally, as we've argued in the briefs, the district court made this fatal mistake of taking a design concept and saying it's not difficult for the court to imagine a reference that would have the same overall appearance.

[00:12:30] Speaker 00:
I'm going to just go back to this for a minute.

[00:12:31] Speaker 00:
Yes, ma'am.

[00:12:32] Speaker 00:
Because at page 8517, it says, as explained above,

[00:12:35] Speaker 00:
a designer would have been motivated to modify any of the above panels to replace the existing stocks, and so on.

[00:12:43] Speaker 00:
And when he's talking about any of the above, there's four of them, and one of them is exhibit five.

[00:12:48] Speaker 00:
So what am I missing?

[00:12:50] Speaker 00:
Again, I think... I mean, I read that, you know, in patent law as meaning that would be the primary reference, even though the magical words, primary reference, aren't used.

[00:12:58] Speaker 02:
But what Levencourt asserted was the primary reference was the shoulder pad.

[00:13:03] Speaker 02:
But again, even if that's true, that it could have been any one of the five, the problem with it is, for exhibit five, they don't have cooperation.

[00:13:12] Speaker 02:
And had this been pointed out, hey, this is going to be the primary reference, we would have spent a lot more time arguing the issue of cooperation on exhibit five of whether it's even prior art.

[00:13:22] Speaker 02:
All you have is the testimony of the founder of Lumicore saying, I think we sold these prior to this time.

[00:13:27] Speaker 02:
I say I'm into my rebuttal time, if I could reserve.

[00:13:30] Speaker 02:
Thank you.

[00:13:40] Speaker 01:
May it please the court, Your Honor Larry Graham, on behalf of the court.

[00:13:45] Speaker 01:
With regard to the 700 patent, the utility patent, the principal argument here is that there is one panel in which there was not a substantially natural confirmation.

[00:14:00] Speaker 01:
Mind you, of course, that's one panel out of hundreds or perhaps thousands of panels that were accused of infringement or made by

[00:14:06] Speaker 01:
either our expert, Dr. Flynn, or by either of the two experts on behalf of three more, three from Dr. Strong or Dr. Gattrow.

[00:14:15] Speaker 01:
And of those, there was one that Dr. Gattrow said might not have a substantial natural confirmation.

[00:14:22] Speaker 01:
I would submit that the overwhelming wave of the evidence would allow this court to find that the prior arc process of the 327th patent still produces the natural confirmation every time, even notwithstanding that panel.

[00:14:35] Speaker 01:
But if you look at it closer, as the court pointed out, that one panel was not made strictly in accordance with the 327.

[00:14:43] Speaker 01:
And starting at appendix 743, you see the testimony of Dr. Gattro further indicates that it's not even that clear whether it's a compressible object or not.

[00:14:54] Speaker 01:
Dr. Gattro says, well, at 744, in the middle of line 13, he's not sure if the thing that's in there that was split or cracked was either reed or grass.

[00:15:05] Speaker 01:
Three-Form devotes a lot of attention to the fact that grass, as illustrated in the prior art 327 patent, is not a compressible object.

[00:15:14] Speaker 01:
And here Dr. Gautreau says, well, the thing that I see that's split in that one exhibit 421, it may or may not be reed or grass.

[00:15:21] Speaker 01:
I can't really tell.

[00:15:24] Speaker 01:
Then he says the same thing at 745.

[00:15:26] Speaker 01:
Right, but I can't tell whether it's a reed or not, so I'm just referring to it as a reed.

[00:15:31] Speaker 01:
He notes that it was green.

[00:15:33] Speaker 01:
And I would submit that it was actually grass, because it had a mix of weeds and grass in it.

[00:15:39] Speaker 01:
Note further, of course, that this question of whether it had a substantially natural confirmation or not is something that Dr. Gattro says is a function of whether it's commercially marketable.

[00:15:52] Speaker 01:
In their infringement contentions, the accused products, as Mr. Schober testified, had all manner of flattening, cracks, and splits in them when they're marketed.

[00:16:03] Speaker 01:
Not one of those was ever excluded in the infringement contentions as being not substantially natural.

[00:16:09] Speaker 01:
This one is the only one.

[00:16:11] Speaker 01:
How do you know whether it's substantially natural or not?

[00:16:14] Speaker 01:
Well, whether it's marketable.

[00:16:16] Speaker 01:
That gets to the question of the indefiniteness of this question in the first place.

[00:16:21] Speaker 01:
Here we have Dr. Gattro looking at a single panel of something split in what is a blade of grass, which he doesn't know also by his testimony whether it was there before it was placed in the panel

[00:16:33] Speaker 01:
or whether it was caused to be split through the process itself, and opining that this one is not substantially natural.

[00:16:40] Speaker 01:
There's no way to know.

[00:16:41] Speaker 01:
It's so inherently indefinite, so subjective, you just know it when you see it.

[00:16:46] Speaker 00:
What about the fact that 3Form's expert testified that 3Form does this kind of visual inspection?

[00:16:52] Speaker 00:
This is part of what they do as their business.

[00:16:55] Speaker 00:
So one of ordinary scale in the art would know when this limitation is met or not.

[00:17:01] Speaker 01:
The problem with that is the standard is going to be different for each person who applies it.

[00:17:06] Speaker 01:
3FORM may have a more exacting standard, or maybe Lumicor has a more exacting standard.

[00:17:11] Speaker 01:
Maybe one of them lets all manner of cracks and splits go out the door and don't care.

[00:17:15] Speaker 01:
The ones in the Madagascar test that 3FORM alluded to about the number of cracks in Dr. Flynn's tests, lots of cracks.

[00:17:24] Speaker 01:
Dr. Gautreaux did not say that any one of those, despite those large number of cracks and splits where the reads were crossed over,

[00:17:30] Speaker 01:
didn't say that any of those were not substantially natural.

[00:17:33] Speaker 00:
Do you think the district court reached the claim construction that it did because it was trying to put an exacting standard on what those words mean?

[00:17:40] Speaker 01:
It seemed like the district court was trying to do that, even though that standard is not the one that either side's expert used.

[00:17:47] Speaker 01:
So it creates yet an additional problem.

[00:17:51] Speaker 01:
So I would submit that given the overwhelming weight of the evidence, it's very clear that the 327th patent produces

[00:17:58] Speaker 01:
the product within the scope of the 700 claims as applied by their experts and 3-form every single time.

[00:18:06] Speaker 01:
We have a couple of other issues raised that I would like to address.

[00:18:09] Speaker 01:
My colleague says that there was no test on polycarbonate.

[00:18:13] Speaker 01:
And of course, that's true.

[00:18:15] Speaker 01:
Dr. Flynn, though, testified that all of these other resins, PETG, polycarbonate, and so on, they all behave the same way.

[00:18:22] Speaker 01:
The only thing that's different

[00:18:23] Speaker 01:
is to use a different temperature when you apply the process.

[00:18:25] Speaker 01:
That's it.

[00:18:26] Speaker 00:
Is there any contradictory testimony to that?

[00:18:29] Speaker 00:
Contradictory testimony?

[00:18:30] Speaker 00:
Yes.

[00:18:31] Speaker 00:
Any evidence on the record that would undermine that expert's testimony?

[00:18:35] Speaker 01:
Nothing that I believe is admitted.

[00:18:37] Speaker 01:
The only contradictory testimony I'm aware of is that of Dr. Gattro, which I believe was excluded in Rule 702.

[00:18:43] Speaker 01:
Dr. Gattro only says,

[00:18:46] Speaker 01:
that a person of ordinary skill in the art wouldn't appreciate the importance of temperature.

[00:18:50] Speaker 01:
And he was effectively saying that you would use PETG, but you would use a temperature that's much too high, because you don't know what temperature to use.

[00:18:58] Speaker 01:
And he did that in his failed test.

[00:19:00] Speaker 01:
That test was excluded because, of course, the temperature to use was too high, and the pressure he used at the time that he applied the high pressure was clearly too long, although we don't know, because he didn't keep the records.

[00:19:12] Speaker 00:
And his other testimony that you're saying

[00:19:14] Speaker 00:
might undermine the question on the polycarbonate, that that testimony was excluded as well.

[00:19:22] Speaker 01:
I believe that the testimony was excluded because the testimony was entirely based on that false premise test.

[00:19:29] Speaker 01:
And if you exclude the test, you have to exclude the testimony as well.

[00:19:33] Speaker 01:
Even so, there's nothing about the testimony that makes any sense.

[00:19:37] Speaker 01:
It doesn't counter the clear and convincing testimony otherwise.

[00:19:41] Speaker 00:
Even the inventor.

[00:19:43] Speaker 00:
Summary judgment, we have to see whether there is a genuine issue of material facts.

[00:19:47] Speaker 01:
Fair enough, Your Honor.

[00:19:48] Speaker 01:
And on that point, then, I would clearly submit that the testimony that has to be excluded along with the test that was excluded.

[00:19:54] Speaker 01:
Otherwise, there's no test to base the testimony on.

[00:19:59] Speaker 01:
And that gets to the issue of the motivation to combine with PETG.

[00:20:03] Speaker 01:
Dr. Fling clearly says there's a motivation.

[00:20:06] Speaker 01:
All residents, they're the same.

[00:20:07] Speaker 01:
He relies on the prior art that has the PETG panels and says they all behave the same.

[00:20:12] Speaker 01:
There's the motivation.

[00:20:14] Speaker 01:
And the only counter to that is the excluded testimony of Dr. Gattrow.

[00:20:21] Speaker 01:
We have the argument advanced by my colleague with respect to twigs and the argument in the provisional versus that in the utility.

[00:20:30] Speaker 01:
And I would submit that that's one of the topics that was not raised below and should not be admitted in this appeal as well.

[00:20:39] Speaker 01:
The notion is that in the provisional application

[00:20:43] Speaker 01:
Mr. Schober's 327 patent predecessor provisional had only one pressure and mentioned twigs.

[00:20:49] Speaker 01:
And then in the utility, he mentions two pressures.

[00:20:52] Speaker 01:
And therefore, the second pressure can't have anything to do with improving the natural confirmation of twigs.

[00:20:59] Speaker 01:
But of course, there's no reason for that not to be true.

[00:21:02] Speaker 01:
There's nothing in the record below for why that's not true, because it wasn't raised.

[00:21:05] Speaker 01:
But it's quite simple.

[00:21:07] Speaker 01:
Mr. Schober recognized somewhere in between the timing of those two filings that using two steps improved the performance of the product.

[00:21:16] Speaker 01:
But it doesn't even matter.

[00:21:17] Speaker 01:
It doesn't even matter because all that does matter is if you apply the process of the 327 patent with the two pressure steps, and if it produces the product in the substantially natural confirmation within the scope of the 700 claims, then it anticipates.

[00:21:36] Speaker 01:
Dr. Gattro also agreed repeatedly that the purpose of the two pressures in the 327 patent was to avoid the crushing.

[00:21:45] Speaker 01:
He said that twice in his deposition.

[00:21:49] Speaker 01:
Clearly it has that effect whether it was stated as such expressly in the 327 patent or not.

[00:21:57] Speaker 01:
With respect to the 068 patent, we have a very simple substitution of

[00:22:04] Speaker 01:
grass for reeds.

[00:22:06] Speaker 01:
And this is one of those really odd design patents, not much like it.

[00:22:11] Speaker 01:
Every single product is different.

[00:22:13] Speaker 01:
Every single accused product is different.

[00:22:16] Speaker 01:
There never has there ever been a product that looks exactly like the design patent is illustrated, because these are natural materials placed by hand.

[00:22:26] Speaker 01:
And so all we have here is a replacement of something that's basically the same.

[00:22:32] Speaker 01:
At appendix page A,

[00:22:34] Speaker 01:
1047, I believe, is where we have, actually starting earlier than that, in terms of the surprise and the use of reference number five, in three forms briefing below, we have three forms opposition to our motion for summary judgment and their articulation of the statement of facts.

[00:22:57] Speaker 01:
At 1042, starting there, at fact number 80,

[00:23:02] Speaker 01:
We said the 327 patent describes an architectural panel of basically the same design as the 068 patent.

[00:23:10] Speaker 01:
That basically the same design.

[00:23:12] Speaker 01:
That's the magic word.

[00:23:13] Speaker 01:
That means primary reference.

[00:23:15] Speaker 01:
That's what you have to prove to establish a primary reference.

[00:23:18] Speaker 01:
Clearly that's what it's getting at.

[00:23:20] Speaker 01:
So that gets to the image of the prior art 327 patent.

[00:23:25] Speaker 01:
The next paragraph, number 81 in the middle of appendix 1043 says,

[00:23:30] Speaker 01:
Prior to the critical date, Lumicor was making offerings, disclosing, selling a variety of panels, having generally parallel long stock grasses, each of which is basically the same design as the 06A patent.

[00:23:42] Speaker 01:
Again, magic words.

[00:23:44] Speaker 01:
We're saying these are also primary references.

[00:23:46] Speaker 01:
And then it cites all of those grass panels, which includes exhibit number five.

[00:23:51] Speaker 01:
Then 3Form, in its own briefing, looks at every one of those and incorporates images at 1044 and 1045 of every one of those.

[00:24:00] Speaker 01:
labeling exhibit five at the bottom of page appendix 1045, clearly knowing and acknowledging that we're relying on exhibit number five as one of several possible primary references.

[00:24:14] Speaker 01:
And then it continues at 1047 paragraph 82, replacing the grass in the Lumicor products, the grass products, or in the illustration of the 327, either one would produce the claim design.

[00:24:26] Speaker 01:
So clearly in the record below, there should not have been any surprise.

[00:24:29] Speaker 01:
We were saying that you could choose any one of those as a primary reference, substitute reeds for grass, and get the same design.

[00:24:38] Speaker 01:
There's an argument about corroboration for exhibit number five.

[00:24:42] Speaker 01:
And this was also not raised below.

[00:24:44] Speaker 01:
If it had, I think it should have carried the day anyway.

[00:24:48] Speaker 01:
Mr. Schover submitted a declaration with an image that had a date on it with testimony saying that,

[00:24:55] Speaker 01:
It was a product that had the image was taken for his website and he had an email for an order of the product.

[00:25:02] Speaker 01:
That should have been sufficient corroboration anyway.

[00:25:04] Speaker 01:
I suspect that because of the strength of that evidence that was submitted below, Three Form didn't challenge it.

[00:25:10] Speaker 01:
They didn't raise corroboration below and shouldn't be doing so now.

[00:25:14] Speaker 01:
Lastly, we have the motivation to combine here and whether it would produce the result.

[00:25:19] Speaker 01:
The most we have from Three Form's expert, Ms.

[00:25:24] Speaker 01:
Lewis, is that

[00:25:26] Speaker 01:
A consumer who wants a reed product or a grass product wouldn't substitute one for the other.

[00:25:33] Speaker 01:
She's coming at it the wrong way.

[00:25:35] Speaker 01:
She doesn't talk about the motivation to combine references and whether if you saw the prior art with grass in it, it would be obvious to substitute the reeds instead and get the claim design.

[00:25:47] Speaker 01:
She also never saw and did not consider the other prior art references that we rely on for that motivation.

[00:25:56] Speaker 01:
She was not given the Shober patent.

[00:25:58] Speaker 01:
She was only given the drawings.

[00:26:00] Speaker 01:
She said in her deposition that she didn't read that.

[00:26:03] Speaker 01:
She only looked at the drawings.

[00:26:04] Speaker 01:
She was also not given the press release that Three-Form admits is timely and predates the critical date that says, hey, here's a thatch product.

[00:26:13] Speaker 01:
So she knows nothing about those prior art references that would provide a motivation to put reads in there instead of the grass.

[00:26:20] Speaker 01:
So she can offer no compelling opinion, nothing really that's worth anything about

[00:26:25] Speaker 01:
whether a designer would be motivated to combine the two and substitute the reeds for the grass.

[00:26:30] Speaker 01:
It's quite simple, of course.

[00:26:32] Speaker 01:
I mean, the 327 patent literally says as much.

[00:26:35] Speaker 01:
Here's the one that we drew with grass.

[00:26:37] Speaker 01:
Oh, by the way, put reeds where the grass is.

[00:26:40] Speaker 01:
The same thing with the press release.

[00:26:42] Speaker 01:
Either one of those would provide a motivation.

[00:26:45] Speaker 01:
Ms.

[00:26:45] Speaker 01:
Lewis can't testify about whether that does provide a motivation to combine because she never read it.

[00:26:51] Speaker 01:
She knows nothing about it.

[00:26:53] Speaker 01:
This is very, very dead simple stuff.

[00:26:55] Speaker 01:
And she admitted that if you took at least one of the grass products and put a reed in every single place where there was grass, it would get you the same design.

[00:27:06] Speaker 01:
All you need from that point is why would you do that?

[00:27:09] Speaker 01:
And there were two distinct prior art references that say why, the Schoenberg patent and the three-form press release.

[00:27:17] Speaker 01:
At that point, it's clear and convincing, and there's nothing more that's necessary.

[00:27:22] Speaker 01:
Unless there are further questions, I'll yield my remaining time.

[00:27:38] Speaker 02:
With respect to Dr. Gautreaux, on this panel that we spent quite a bit of time talking about, his testimony was unequivocal.

[00:27:45] Speaker 02:
And this is in our appendix.

[00:27:47] Speaker 02:
It's at page 746.

[00:27:50] Speaker 02:
He specifically says,

[00:27:52] Speaker 02:
There's a reed that's just to the left of the Exhibit 421 sticker.

[00:27:56] Speaker 02:
There's a reed that runs the length of a panel.

[00:27:58] Speaker 02:
And that, again, appears to have a split or deformation through the length of the panel.

[00:28:03] Speaker 02:
He wasn't confused.

[00:28:04] Speaker 02:
He knew that there were compressible objects in Exhibit 421.

[00:28:07] Speaker 02:
And he testified that they were not a substantially natural appearing confirmation.

[00:28:11] Speaker 02:
With respect to indefinities.

[00:28:12] Speaker 00:
How do you respond to the point that there were thousands of panels that had it naturally conforming?

[00:28:16] Speaker 02:
Under this court's case law, that's irrelevant.

[00:28:19] Speaker 02:
If there's one that shows that it didn't prove it,

[00:28:22] Speaker 02:
and that's under Novofarm and Glaxo, then that means it can't every time that you follow their process produce a substantially natural appearing confirmation.

[00:28:31] Speaker 02:
And under the strict identity requirements of, of inherency, that one is enough to say you don't get to invalidate on clear and convincing evidence on summary judgment.

[00:28:41] Speaker 00:
With respect to indefinite- Didn't he on page 745, A74045 said that he wasn't sure if it was a read?

[00:28:49] Speaker 02:
What he said was he wasn't sure what all of them were.

[00:28:52] Speaker 02:
But then he goes down and says in that second page I just read that there is a read.

[00:28:57] Speaker 02:
He wasn't sure what all of the items were in that panel.

[00:29:00] Speaker 02:
But he says down below.

[00:29:01] Speaker 00:
In the event there were different things.

[00:29:02] Speaker 02:
Right.

[00:29:03] Speaker 02:
There were different things.

[00:29:03] Speaker 02:
And that's how these work sometimes.

[00:29:04] Speaker 02:
There are different kinds of decors.

[00:29:07] Speaker 02:
With respect to indefiniteness, this issue was never raised with the trial court.

[00:29:12] Speaker 02:
They didn't move for summary judgment on indefiniteness.

[00:29:15] Speaker 02:
If you look at the appendix, page 476, it's clear they moved on two issues.

[00:29:19] Speaker 02:
Obviousness and inherency didn't move on indefiniteness so this court shouldn't address that now.

[00:29:24] Speaker 02:
I see I'm out of time.

[00:29:26] Speaker 02:
Thank you.