[00:00:00] Speaker 03:
The first of these is number 15-1357, Indotak LLC versus Cook Medical, Mr. Souter.

[00:00:20] Speaker ?:
Good morning, Your Honor.

[00:00:20] Speaker 01:
Good morning.

[00:00:21] Speaker 01:
May it please the Court, and good morning.

[00:00:24] Speaker 01:
Part of this appeal is a latches case, but as of yesterday,

[00:00:28] Speaker 01:
In the Supreme Court's decision to grant cert, it's questionable whether latches may still be in the fence in a patent case.

[00:00:35] Speaker 01:
That remains to be seen.

[00:00:36] Speaker 01:
But in any event, there is no latches here, and especially as a matter of law.

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Appellant, we presented evidence on each and every element.

[00:00:49] Speaker 01:
We presented our own evidence such that we burst the presumption bubble as required by the panel decision in SCA.

[00:00:57] Speaker 01:
That then shifted the burden to the defendant Appellee to come forth with evidence.

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They did not do that.

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We showed evidence of delay that was either as the SCA case was either a reasonable jury could conclude.

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that the delay was either excusable or not unreasonable.

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And we showed that there was no evidence, as a matter of law, because we moved for summary judgment, of either prejudice evidentiary or economic.

[00:01:29] Speaker 03:
On the evidentiary prejudice point, briefs are not entirely clear what's going on here.

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As I understand it, your effort at trial would be to swear around a piece of prior art.

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and that some of the evidence in question here relates to that issue, and that is the date of conception and diligence and reduction to practice, and some of it relates to the infringement issue.

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Am I correct about that?

[00:02:05] Speaker 01:
Yes, Your Honor, but the evidence on prior art and conception was the Lee reference, and Dr. Lee was deposed

[00:02:13] Speaker 03:
I understand that, but the effort was to show that Dr. Rhodes conceived of the invention and was diligent in reducing it to practice before the Lee Prior art, correct?

[00:02:27] Speaker 01:
Yes.

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So why isn't some of this material documents and potential witness testimony that

[00:02:37] Speaker 03:
allegedly was lost real late to that issue.

[00:02:41] Speaker 01:
Your Honor, very simply, Dr. Rhodes passed away in 2000.

[00:02:45] Speaker 01:
prior to Cook having their product put on the market in 2003.

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His wife, his longtime assistant, and the prosecuting attorney produced the records that they had.

[00:02:58] Speaker 01:
Mrs. Rhodes testified that her husband would keep notes on a napkin, but after the patent application was filed, he threw them away, which would have been in the early 90s.

[00:03:07] Speaker 03:
Well, she said that in 2009, she believed that she threw away some material when she moved, right?

[00:03:14] Speaker 01:
She moved when he was sick, which again was prior to 2003.

[00:03:19] Speaker 01:
He was in New Jersey.

[00:03:20] Speaker 03:
I thought she testified that she moved in 2009.

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Am I mistaken about that?

[00:03:27] Speaker 01:
Yes, Your Honor.

[00:03:27] Speaker 01:
I believe she moved to Florida before he passed away, and then raised her family, her small children, went back to work in Florida, in West Coast of Florida.

[00:03:36] Speaker 01:
But Your Honor, the point is on evidently prejudice, and this is the, we cite the James River case,

[00:03:43] Speaker 01:
Cook has to show that they were denied the opportunity to present a fair and full defense, and that case cites alchemy, and how the lost evidence is important to the defense.

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Memories fade.

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People don't remember.

[00:03:59] Speaker 01:
But here, they presented three summary judgment motions, eight defenses, 70 exhibits,

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Where is the testimony or evidence that they were denied the opportunity to present a full and fair defense on each of the issues in the case?

[00:04:19] Speaker 00:
don't remember well if there's a presumption that applies here your comments are presupposing that it's their burden to prove all this prejudice if a presumption applies here then isn't it actually your burden to overcome the presumption not their burden

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to prove?

[00:04:37] Speaker 01:
Yes, Your Honor.

[00:04:38] Speaker 01:
Yes, Your Honor.

[00:04:39] Speaker 01:
And we submit that we presented sufficient evidence, our evidence, of when Dr. Rhodes passed away, when Johnson & Johnson did their license six years before the product and put it in a drawer, when Mrs. Rhodes had to go back to work and raise her four children, and that Cook studied our patents in 1993 and again in 2007 and with their counsel used our patents as a sword

[00:05:05] Speaker 01:
to assert as a defense to another patent infringement suit.

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So the totality of it.

[00:05:10] Speaker 00:
Why would Mrs. Rhodes going back to work be an excuse for why she didn't pursue her legal rights via latches?

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Because if it was, wouldn't it pretty much give everybody an excuse?

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We all work.

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We all have children to raise.

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I mean, wouldn't that be sort of a built-in excuse all the time for unreasonable delay?

[00:05:30] Speaker 01:
Yes, Your Honor.

[00:05:30] Speaker 01:
This court and other courts have held that that is not enough.

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But you have to look at the totality of the circumstances.

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And that's just a factor that goes into the circumstance of whether or not the delay was excusable or not unreasonable.

[00:05:49] Speaker 01:
Those are determinations.

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And the underlying facts of delay, whether it's evidentiary prejudice, whether it's economic prejudice, as this court held in SCA, are questions of fact.

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that are reviewed by this court, if whether we presented sufficient evidence made a prima facie case.

[00:06:04] Speaker 05:
I'm not sure why you keep referring to the SCA panel decision.

[00:06:07] Speaker 05:
I mean, that was vacated by the en banc decision.

[00:06:09] Speaker 01:
Yes, Your Honor.

[00:06:10] Speaker 01:
But the en banc issue had a specific issue.

[00:06:13] Speaker 05:
Right, but it was still vacated.

[00:06:14] Speaker 05:
It's not precedent anymore.

[00:06:18] Speaker 01:
Yes, Your Honor.

[00:06:18] Speaker 01:
But I can cite the Alkermann.

[00:06:20] Speaker 01:
I can cite the Hem Street.

[00:06:22] Speaker 01:
It's just the latest pronouncement

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What of the of the case?

[00:06:27] Speaker 05:
It was the latest pronouncement until the on bond court vacated it when it granted on bond.

[00:06:32] Speaker 05:
Yes, sir.

[00:06:33] Speaker 01:
Yes, your honor.

[00:06:34] Speaker 01:
Well, I'd say Ackerman, Hempstreet is a fair decision on what is required.

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It all goes back to the Ackerman case.

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What precisely is your argument as to why the delay was excusable?

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Because a minute ago, you were talking about Mrs. Rhodes and her work and her raising children.

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But then your very sentence morphed into prejudice and these other things.

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But these are each discrete issues.

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It's not that we consider on a totality of the circumstances all of them in a lump sum and if cumulatively you raise a question of fact somehow to the ultimate issue.

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We have to look at each of these issues.

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We look at delay.

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Did you raise a question of fact about delay that should have precluded the judgment?

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Did you raise a question of

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fact about prejudice that should have precluded the judgment.

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So where is your evidence related to delay?

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Is it only Ms.

[00:07:28] Speaker 00:
Rhodes and her other obligations?

[00:07:30] Speaker 01:
Yes, Your Honor, and yes.

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And I'll be honest with you, our focus of our briefs, and it is either delay or prejudice.

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And we move for summary judgment ourselves at the district court that as a matter of law, they could not show prejudice.

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So yes, we are including everything, but our focus is on prejudice, both evidentiary and economic.

[00:07:54] Speaker 03:
We raise facts... Not to say you're giving up on the delay argument.

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I'm not giving up on delay, but I'm leading with prejudice.

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I think it's technically, in a legal setting, they're different, but when you look at the facts

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Sometimes there's a fine line, and it's hard to draw whether this goes to delay, this goes to prejudice.

[00:08:14] Speaker 01:
Our main argument here is that they could not establish prejudice, either prejudice as a matter of law or as a matter of fact.

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But at a minimum, we could not grant summary judgment on the issue of prejudice, because we presented sufficient evidence to burst the bubble.

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And they did not pull forth any evidence of any nexus on economic prejudice.

[00:08:38] Speaker 01:
We can see that they say they spent millions of dollars in product development, but how is that a result of the delay when the evidence showed that they studied our patents in 93, they studied our patents in 2007, and when we asked them in deposition, what is your evidence to support your position of latches, and they refused to answer on the basis of objection.

[00:09:02] Speaker 01:
I'm sorry you're on the site XCA, but there the facts were that they said they bought a business that they wouldn't have bought.

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They did other things.

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Here, all they say is we invested lots of money.

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And that's not the appropriate nexus under the case law to establish economic prejudice.

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And on evidentiary prejudice, I cite to our reply brief, where we outlined each witness that was deposed, every document

[00:09:26] Speaker 01:
that exists was produced.

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The other side says we didn't produce from these witnesses and we explained how they were all produced under an end-detached bait slave.

[00:09:35] Speaker 01:
What is the significance of their knowledge of the patent?

[00:09:39] Speaker 01:
It's not the knowledge of the patent alone.

[00:09:41] Speaker 01:
It's that they used the patent.

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They sought legal advice.

[00:09:46] Speaker 01:
Their trial counsel affirmatively used the patent and studied the patent.

[00:09:51] Speaker 01:
What does that show?

[00:09:52] Speaker 01:
That shows that if they studied our patent and knew of our patent and evaluated our patent under the cloak of privilege, what are the inferences of that?

[00:10:02] Speaker 01:
Did we present evidence that that shows something more than those?

[00:10:05] Speaker 03:
The inferences that they knew about the patent and they knew you weren't suing them.

[00:10:10] Speaker 01:
Yes, but maybe the circumstances were such they evaluated that Dr. Rhodes was deceased.

[00:10:15] Speaker 01:
Again, see, inference is a summary judgment.

[00:10:18] Speaker 01:
It's not just that we wrote him a letter.

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When we asked him, what did you do in reliance on knowing about our patent, they said, I can't tell you.

[00:10:28] Speaker 01:
It's privileged.

[00:10:30] Speaker 00:
I don't see how that supports you, though.

[00:10:32] Speaker 00:
I'm in the same camp, I think, as Judge Dyke, whereas I don't see how their knowledge of the patent establishes that laches shouldn't apply based on your unreasonable delay.

[00:10:46] Speaker 01:
Your Honor, yes, I'm talking about prejudice.

[00:10:51] Speaker 01:
They have to show a nexus.

[00:10:54] Speaker 00:
No, you have to overcome.

[00:10:57] Speaker 00:
It's not that they have to show a nexus, you have to overcome the presumption.

[00:11:01] Speaker 01:
Yes, and I have to overcome the presumption on both delay, that it was either excusable or unreasonable, and the issue is or,

[00:11:12] Speaker 01:
is put forth evidence of no material prejudice.

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If I put forth evidence of either one, then the presumption goes away.

[00:11:18] Speaker 05:
Which are evidence of no material prejudice on the economic factor?

[00:11:23] Speaker 05:
They did not make any change.

[00:11:27] Speaker 05:
So this is the problem I'm having is you're basically, every time we ask you about what specific evidence, you're saying they didn't show something.

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But in this case, assuming we think the presumption applies, and it seems to,

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It's your burden to put forth evidence.

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And you're kind of essentially arguing that because they didn't put forth any opposing evidence, they shouldn't get summary judgment, which leads me to the conclusion that you think they should never get summary judgment in favor of latches.

[00:11:57] Speaker 01:
Your Honor, we asked them, what did you do when you learned of the patent under a 30 v 6 witness?

[00:12:07] Speaker 01:
And they refused to answer on the advice of counsel.

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So we are left with this.

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We couldn't find out that way.

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But also, what we do know is we asked them in an interrogatory answer, which is in the record A4330.

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And we said, what non-infringing alternatives could you have taken advantage of?

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And their answer was, the non-infringing alternative is the accused device.

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There is no non-infringing alternative.

[00:12:35] Speaker 01:
So what could they have?

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We asked, what would you have done differently?

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How have you responded differently?

[00:12:41] Speaker 01:
We know you knew of the patent.

[00:12:43] Speaker 01:
What actions did you take?

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And they foreclosed us from finding out.

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And when we said, is there a non-impeachable?

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Do you think an absence of evidence on their part is enough to create a genuine issue of material fact on prejudice?

[00:12:56] Speaker 05:
Under these facts, yes.

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When we did everything we could do.

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It seems to do away with the presumption.

[00:13:03] Speaker 05:
I mean, you may have a very good argument that the presumption is kind of flawed in these kind of circumstances, because they're really

[00:13:10] Speaker 05:
is evidence in their control, but that's the law still.

[00:13:13] Speaker 01:
Your Honor, yes.

[00:13:14] Speaker 01:
The question is, you start with a presumption.

[00:13:17] Speaker 01:
Did we make a prima facie case to show either the lay was excusable, non-reasonable, or prejudiced?

[00:13:27] Speaker 01:
And if we make a prima facie case, that's all.

[00:13:29] Speaker 01:
We don't have to prove it.

[00:13:30] Speaker 01:
If we make a prima facie case, the presumption goes away, and they have to come forth with evidence of what they did.

[00:13:36] Speaker 01:
We asked them, and they didn't tell us.

[00:13:38] Speaker 01:
Under that record,

[00:13:40] Speaker 01:
I don't see how as a matter of law you could find economic prejudice.

[00:14:00] Speaker 04:
Mr. Zanferdino?

[00:14:03] Speaker 04:
Yes, good morning, Your Honor.

[00:14:04] Speaker 04:
It's been a pleasure to court.

[00:14:05] Speaker 04:
And before I begin my prepared remarks, I'd like to answer the one question about Brenda Rhodes and what happened in 2009.

[00:14:13] Speaker 04:
So she had testified that there were scraps of paper that she or her husband asked her to keep, notwithstanding what they've said, that she threw everything away back in the 80s.

[00:14:23] Speaker 04:
And we tried to get those documents, because as you pointed out, there was this Lee reference that we had shown would have otherwise anticipated.

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the roads pat unless they were able to predate it under 102G.

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And she testified that in 2009 she had moved, and it was sort of a hurried move, and documents had gotten lost.

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That's in the record.

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We cited that in our brief.

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So I wanted to make sure I answered that question.

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Now, the other point is about the presumption and the discussion about the reasonable delay.

[00:14:58] Speaker 04:
They're briefed.

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I'm surprised that they're raising it here, because their brief makes no attempt to.

[00:15:03] Speaker 00:
I'd really rather you focus on prejudice.

[00:15:06] Speaker 00:
Please tell me how you were prejudiced.

[00:15:09] Speaker 04:
Both economic and evidentiary?

[00:15:12] Speaker 00:
Wherever you'd like to start.

[00:15:13] Speaker 04:
OK, so on the economic side, so we had retained an expert.

[00:15:21] Speaker 04:
Their focus is the question of whether we had shown a nexus.

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So we had retained an expert, Vince Thomas, specialized in looking at economic data and those sort of things.

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And he had noted all the investments that went into the development and the marketing and the FDA approval for these products.

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That's not disputed.

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The question was this.

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So by the time they had notified us of an alleged infringement, the 154 patent had long expired.

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So how is it that we can make any change in a product?

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How can we do anything?

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We can't turn the clock back.

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So by waiting so long and waiting until after the patent expired, that effectively foreclosed us from doing anything.

[00:16:05] Speaker 00:
Did you already know about that patent?

[00:16:08] Speaker 04:
So that's a good question.

[00:16:10] Speaker 04:
And I guess it depends what to know means.

[00:16:13] Speaker 04:
There were folks within the large Cook family of companies that had knowledge of the patent, as you can tell from the privilege law.

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So what you don't have, unfortunately, in the record is the actual interrogatory.

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So they pointed you to the interrogatory answer that says, tell us when you found out.

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Well, the actual interrogatory, and I can send it to you in a letter, defines you to be Cook.

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and all its predecessors and successors and affiliates and related companies and that sort of thing.

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And so we were responding to that interrogatory.

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So we went to all the affiliate companies and looked at all their documents and said, OK, now anybody ever see this patent?

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Once we got those documents, we put them into law.

[00:17:00] Speaker 04:
They're trying to say now that that large body of knowledge spread out a bunch of different affiliates and predecessors and successor companies all becomes the knowledge of Cooke Medical.

[00:17:11] Speaker 04:
That's just not the case.

[00:17:13] Speaker 00:
So are you saying Cook Medical did not have knowledge of the patent?

[00:17:18] Speaker 04:
When it was sued, yes.

[00:17:19] Speaker 00:
No.

[00:17:20] Speaker 00:
Prior to being sued, are you saying, you're telling me all these documents went on the privilege log.

[00:17:25] Speaker 00:
And I'm wondering if you're playing a shell game with me.

[00:17:27] Speaker 00:
Are you telling me that Cook Medical was not one of the Cook companies under the Cook umbrella that had knowledge of the patent prior to being sued?

[00:17:38] Speaker 04:
Cook Medical, I don't remember the exact date when they came into existence.

[00:17:43] Speaker 04:
But there were predecessor companies, Cooke Incorporated, Cooke Group Inc.

[00:17:47] Speaker 04:
They're listed in the record.

[00:17:49] Speaker 04:
The actual entity that's in this appeal, Cooke Medical LLC, previously Cooke Medical Incorporated, didn't exist back in 1993 when there's a privilege law.

[00:17:59] Speaker 03:
Is there an answer that we don't know whether Cooke Medical and its predecessors had knowledge of the patent or not from this record?

[00:18:07] Speaker 04:
I think that's the answer.

[00:18:08] Speaker 04:
I think the bigger question is, so what?

[00:18:10] Speaker 04:
I mean, having knowledge of the past.

[00:18:12] Speaker 00:
When you say that's the answer, no, you know.

[00:18:14] Speaker 00:
These documents on the privilege law demonstrate who knew and as of what date.

[00:18:18] Speaker 00:
They're just not part of the record, right?

[00:18:20] Speaker 00:
So you do know the answer to this question.

[00:18:23] Speaker 04:
Me, personally, I do not.

[00:18:25] Speaker 04:
Somebody knows, right?

[00:18:26] Speaker 04:
But it's not part of the record, so there's no evidence.

[00:18:29] Speaker 04:
That's our point.

[00:18:30] Speaker 04:
This is all about whether.

[00:18:32] Speaker 05:
Let me ask you this.

[00:18:34] Speaker 05:
We're on summary judgment.

[00:18:35] Speaker 05:
Since you can't answer this,

[00:18:37] Speaker 05:
Isn't the inference drawn against you that you knew about this patent at the relevant time for latches?

[00:18:43] Speaker 05:
And we have to move on from that.

[00:18:45] Speaker 05:
And you can't claim lack of knowledge.

[00:18:50] Speaker 04:
If you're trying to draw an adverse inference from what's on the log, I would suggest that that's in progress.

[00:18:55] Speaker 00:
Not from what's on the log, from your interrogatory disclosure.

[00:18:58] Speaker 00:
Your interrogatory disclosure says, yes, we knew about it in advance.

[00:19:02] Speaker 00:
And now you're saying, but we, we don't know.

[00:19:04] Speaker 00:
You don't know which company we are.

[00:19:05] Speaker 00:
And it's all hidden in these privilege documents.

[00:19:08] Speaker 00:
So why isn't Judge Hughes exactly right that drawing adverse inference in light of your admission in the interrogatory would establish your advanced knowledge?

[00:19:17] Speaker 04:
So let's accept that that's the case, that Cooke Medical has some collective knowledge based on a predicate.

[00:19:23] Speaker 04:
Because we have to accept it under the summary judgment standard.

[00:19:26] Speaker 04:
OK, then let's accept that.

[00:19:28] Speaker 04:
My answer to that is so what?

[00:19:29] Speaker 04:
I mean, under all the cases,

[00:19:31] Speaker 04:
They've never cited a case that says just knowledge alone of a patent somehow forecloses reliance on a... But doesn't it reduce the prejudice that you likely suffer?

[00:19:41] Speaker 00:
Because many, many, many of these latches cases that we have do not involve a company that had knowledge of the patent.

[00:19:49] Speaker 00:
And so you can understand why a company proceeding on its course of business development in the absence of any knowledge of a patent would be much more prejudiced

[00:20:00] Speaker 00:
that a company proceeding in its course of business with knowledge of a patent, maybe even having sought opinions and being concerned that this very patent reads on their device.

[00:20:11] Speaker 00:
You can see that the prejudice could be quite a bit stronger in a scenario where there isn't knowledge.

[00:20:17] Speaker 04:
But Your Honor, for example, when you say being concerned about whether this patent reads on your device, you're starting to draw adverse inferences, I think, about what that evidence would be.

[00:20:25] Speaker 00:
Yes, but isn't that what we have to do, a summary judgment?

[00:20:28] Speaker 00:
It's for all these adverse inferences.

[00:20:31] Speaker 04:
But not based on the assertion of the attorney-client privilege, you can't.

[00:20:37] Speaker 04:
I don't believe so.

[00:20:39] Speaker 04:
So it seems to me your argument is we've met the standards for the presumption.

[00:20:44] Speaker 04:
Absolutely.

[00:20:45] Speaker 05:
And we refuse to answer any questions about our specific reasons

[00:20:49] Speaker 05:
even though we knew about this patent for why there's delay, so they therefore were entitled to summary judgment.

[00:20:56] Speaker 05:
That can't be the case.

[00:20:57] Speaker 05:
That makes the presumption automatic.

[00:21:02] Speaker 04:
Well, there's lots of different ways to rebut the presumption, right?

[00:21:06] Speaker 05:
Let's just talk about the economic things.

[00:21:10] Speaker 05:
I mean, on that, basically, if you meet the presumption, they have to show that you didn't rely on the lack of suit or had some other reason for going forward with your business plans.

[00:21:26] Speaker 05:
Or they could have discovered if you didn't put forth the privilege

[00:21:31] Speaker 05:
that you looked at this and said, well, we don't think they're ever going to sue on this because the inventor is dead.

[00:21:36] Speaker 05:
And that would show a lack of prejudice.

[00:21:40] Speaker 05:
But if you don't answer those questions, then how are they ever entitled to find out the reasons for why there's no nexus between your knowledge of the patent and your economic plans?

[00:21:51] Speaker 04:
So your honor said we're lying.

[00:21:55] Speaker 04:
rely on the delay?

[00:21:57] Speaker 04:
With all due respect, I don't think that that's the test.

[00:22:00] Speaker 04:
I think it's the question of whether the prejudice results from the day.

[00:22:03] Speaker 04:
It's not a question of reliance.

[00:22:05] Speaker 03:
Well, let me be clear about what you were asking.

[00:22:08] Speaker 03:
Now, certainly they could have asked whether Cook Medical was aware of the patent.

[00:22:13] Speaker 03:
And you said they didn't ask that question.

[00:22:15] Speaker 03:
They asked the broader question.

[00:22:17] Speaker 03:
Correct.

[00:22:17] Speaker 03:
So what are the questions that your client declined to answer on the grounds of prejudice, on the grounds of privilege?

[00:22:28] Speaker 03:
Which questions specifically?

[00:22:29] Speaker 03:
Yeah, which questions specifically did they ask that they didn't get an answer to on the grounds of privilege?

[00:22:36] Speaker 04:
I don't know which specifically, which questions that they think matter.

[00:22:40] Speaker 04:
I think that's a better question for them because they have the burden of proof on that.

[00:22:44] Speaker 03:
I know what they asked.

[00:22:45] Speaker 03:
What did they ask?

[00:22:48] Speaker 04:
in the interrogatory, it says, state when you became first... No, no, no, I'm not talking about the awareness.

[00:22:55] Speaker 03:
They could have asked you when Cook Medical became aware.

[00:22:57] Speaker 03:
They didn't ask, that seems to me to be their problem, but they didn't define the question properly.

[00:23:03] Speaker 03:
But they asked other questions about why you did not, weren't concerned about that, right?

[00:23:12] Speaker 03:
What did they ask?

[00:23:14] Speaker 04:
I don't believe they ever asked that.

[00:23:16] Speaker 04:
They never asked that question.

[00:23:18] Speaker 03:
How did the privilege issue come up?

[00:23:20] Speaker 04:
The privilege issue comes up from the privilege log.

[00:23:24] Speaker 04:
That's the only place that they're pointing to as a privilege log.

[00:23:28] Speaker 04:
They were never going to be able to take a privilege log.

[00:23:30] Speaker 03:
In other words, they didn't pursue the reasons that you went ahead apart from reading the privilege log and saying that certain documents were privileged.

[00:23:42] Speaker 04:
That's correct.

[00:23:43] Speaker 04:
They looked at the privileged log and they said, look, here's an individual who seems to be an employee of some cook company.

[00:23:48] Speaker 04:
And we gave detailed log entries.

[00:23:51] Speaker 04:
We weren't trying to hide the ball, where it might say something refer to one of the patents in suit.

[00:23:57] Speaker 03:
So they never asked, why did you go forward with this when you had knowledge of the patent?

[00:24:03] Speaker 03:
Correct.

[00:24:06] Speaker 04:
That's correct.

[00:24:06] Speaker 04:
There is no such question.

[00:24:10] Speaker 00:
But I'm looking at the privilege log.

[00:24:13] Speaker 00:
And the privilege log reflects a lot of entries for things like letters slash report referring to the 154 patent reflecting legal advice and requesting legal advice.

[00:24:27] Speaker 00:
I mean, that indicates not only that you had knowledge, but you put this on the privilege log.

[00:24:33] Speaker 00:
And I mean, it pretty strongly implies in an adverse inference world that you were also seeking legal advice about whether you infringe that patent, doesn't it?

[00:24:43] Speaker 04:
I would say no.

[00:24:45] Speaker 04:
There's nothing in there about whether we infringe that patent.

[00:24:48] Speaker 04:
It's just legal advice about the patent.

[00:24:51] Speaker 04:
If I go further, I run the risk of waiving the attorney-client privilege.

[00:24:56] Speaker 04:
If I had that document in hand right now, I don't.

[00:25:00] Speaker 03:
But did they ever seek to overcome the privilege?

[00:25:04] Speaker 04:
I don't recall that they ever moved to compel.

[00:25:06] Speaker 04:
But my answer to that right now would be no.

[00:25:09] Speaker 04:
They never got an order from Judge McKinney saying, look, that reliance on the privilege was incorrect.

[00:25:14] Speaker 04:
You've got to answer that question.

[00:25:15] Speaker 04:
There was no such question.

[00:25:25] Speaker 04:
So if I may, I'd like to turn to the non-infringement of the 47 Pat, unless you have any other questions on latching.

[00:25:37] Speaker 00:
Well, I guess I'd still like you to tell me what the evidence of.

[00:25:41] Speaker 00:
Why don't you go through the evidence of evidentiary prejudice?

[00:25:46] Speaker 00:
Because you only really have to establish one of these two.

[00:25:48] Speaker 00:
You don't have to establish both.

[00:25:49] Speaker 00:
That's correct.

[00:25:50] Speaker 00:
So why don't you tell me the evidence of evidentiary prejudice?

[00:25:54] Speaker 04:
It relates back to Your Honor's point about the leap path and the fact that we had uncovered prior art that predated their path.

[00:26:02] Speaker 04:
And so they were going to try and leapfrog behind it with prior conception of reduction of practice.

[00:26:08] Speaker 04:
So we had asked, well, who were your witnesses going to be?

[00:26:10] Speaker 04:
And they listed a Brenda Rhodes, who was the widow of the deceased named inventor, a person by the name of William Kafari, who was a friend down in Florida, Dr. Rhodes' former secretary, Mrs. Dungan,

[00:26:24] Speaker 04:
And I believe those were the principal folks.

[00:26:28] Speaker 04:
So obviously, we went and talked to each one of them.

[00:26:30] Speaker 04:
First was Brenda Rhodes.

[00:26:32] Speaker 04:
And Brenda Rhodes wanted to tell this whole story about what her husband had done.

[00:26:38] Speaker 04:
But she didn't have any documents.

[00:26:40] Speaker 04:
She talked about how he would sketch these things out.

[00:26:43] Speaker 04:
And we said, OK, where's those sketches and napkins?

[00:26:47] Speaker 04:
And she said, well, he told me to hang on to stuff.

[00:26:49] Speaker 04:
They say, no, I was told to throw everything out.

[00:26:53] Speaker 04:
because it was too sensitive to keep around.

[00:27:00] Speaker 04:
Their point is, look, that hurts us more than it hurts you because we can't corroborate.

[00:27:06] Speaker 04:
But they weren't going to not tell their invention story.

[00:27:08] Speaker 04:
They fully intended

[00:27:10] Speaker 04:
if they got the trial to tell this invention story.

[00:27:12] Speaker 04:
They act as if we've already won an invalidity.

[00:27:15] Speaker 04:
We haven't won yet an invalidity.

[00:27:17] Speaker 04:
We would expect it to, but we didn't have what we were going to need to cross-examine her if Judge McKinney was going to let her tell that story.

[00:27:30] Speaker 04:
Next person was this friend, William Kafari.

[00:27:32] Speaker 04:
He supposedly had all these notes in meetings

[00:27:37] Speaker 04:
Dr. Rhodes, and he was going to testify about what had happened and what he had seen.

[00:27:42] Speaker 04:
And he had said he had documented all these meetings.

[00:27:44] Speaker 04:
And when I asked him, well, where are those documents?

[00:27:46] Speaker 04:
What happened to them?

[00:27:46] Speaker 04:
He said, well, they were all destroyed in the deluge of 2005 flood.

[00:27:51] Speaker 04:
I don't have anything left.

[00:27:53] Speaker 04:
Then their next witness who was going to try and tell an invention story was the secretary.

[00:27:59] Speaker 04:
Same thing.

[00:27:59] Speaker 04:
We asked, where's all your documents about what you had seen and done at the time?

[00:28:03] Speaker 04:
Don't have anymore.

[00:28:05] Speaker 04:
And we'd ask them, what do you remember?

[00:28:06] Speaker 04:
You saw the list of things they couldn't remember, the I don't knows, I don't remembers.

[00:28:10] Speaker 04:
There was another witness, the prosecuting intern.

[00:28:12] Speaker 00:
The only problem with the I don't knows and I don't remembers is none of them seem to go into anything important about the case.

[00:28:18] Speaker 00:
It's like if you asked me what I ate for dinner last Friday, I don't remember.

[00:28:22] Speaker 00:
But why does that really prejudice you?

[00:28:24] Speaker 00:
I didn't see how their I don't knows and I don't remembers hurt you in any way.

[00:28:31] Speaker 00:
I went through all of them.

[00:28:32] Speaker 00:
Couldn't find a single one that hurt your case.

[00:28:37] Speaker 04:
We never got that far to be able to see whether that was going to be the case, Your Honor.

[00:28:42] Speaker 00:
That's why this is summary judgment.

[00:28:47] Speaker 04:
But we had the latches presumption on top of that, right?

[00:28:49] Speaker 04:
We had that as well.

[00:28:55] Speaker 04:
So there's the last few seconds that I have.

[00:28:58] Speaker 04:
I don't know if you have any questions on the economic questions.

[00:29:00] Speaker 03:
Well, are these people that you have been talking about, Mrs. Rhodes,

[00:29:05] Speaker 03:
the friend whose name I can't remember and the secretary, were they designated to speak about the conception and diligence issues in connection with the invalidity question?

[00:29:21] Speaker 04:
I'm out of time.

[00:29:22] Speaker 04:
Can I answer?

[00:29:23] Speaker 04:
Yes, they absolutely were.

[00:29:25] Speaker 04:
And an additional witness who I neglected to mention was Mr. Stein, the prosecuting attorney.

[00:29:31] Speaker 04:
He didn't remember anything.

[00:29:32] Speaker 04:
He didn't even remember prosecuting the 417 that we showed it to him.

[00:29:36] Speaker 04:
It was a complete surprise.

[00:29:37] Speaker 04:
So think about the fact that if there was a possibility that we could have had an equal conduct offense, it's gone.

[00:29:43] Speaker 04:
He couldn't remember anything.

[00:29:45] Speaker 04:
He didn't have the documents.

[00:29:51] Speaker 02:
Thank you.

[00:29:52] Speaker 02:
Mr. Senator, you have two minutes.

[00:29:54] Speaker 02:
Yes.

[00:29:55] Speaker 02:
I'll be very brief.

[00:29:56] Speaker 02:
Two minutes, please.

[00:29:57] Speaker 02:
Thank you.

[00:29:59] Speaker 01:
It's not just the interrogatory answers, Your Honor.

[00:30:02] Speaker 01:
At A6735 is the question, Your Honor, that you asked about what we asked.

[00:30:08] Speaker 01:
What do you know about latches?

[00:30:09] Speaker 01:
And there was an objection, privilege.

[00:30:11] Speaker 01:
We're not allowed to answer.

[00:30:12] Speaker 01:
That's A6735.

[00:30:15] Speaker 01:
In addition to the Privilege Log, there were invalidity contentions in another case in 2007 with the exact same counsel, where they had studied and asserted our patent in that case.

[00:30:27] Speaker 01:
So they did study it, and they bolded it.

[00:30:29] Speaker 01:
And that is cited in the record of, so it's not just our interrogatory answers of the Privilege Log, it's others.

[00:30:35] Speaker 03:
To what extent did you pursue this question of what there

[00:30:41] Speaker 03:
knowledge and motivation was.

[00:30:44] Speaker 03:
Did you try to overcome the privilege law?

[00:30:46] Speaker 01:
No.

[00:30:46] Speaker 01:
We felt we had enough evidence because all we have to do is put forth some evidence to burst the presumption and the burden shifts to them to come forward with evidence.

[00:30:55] Speaker 01:
And they did not do that.

[00:30:58] Speaker 01:
Your Honor, on the evidentiary prejudice, all those witnesses were testified.

[00:31:02] Speaker 01:
There were corroboration issues.

[00:31:05] Speaker 01:
How's the prejudice, as Judge Moore just said, if it doesn't hurt them and hurts us, how is that prejudice to them?

[00:31:11] Speaker 01:
But all these witnesses produce documents.

[00:31:14] Speaker 03:
Well, that makes it sound as though if you have the burden of proof that the other side is not entitled to have the evidence that might overcome that.

[00:31:25] Speaker 01:
Would they give it the opportunity to have a full and fair defense?

[00:31:29] Speaker 01:
take into account that sometimes witnesses forget things happen.

[00:31:33] Speaker 03:
But were they given that opportunity... Well, if documents were destroyed, then you wouldn't have a full and fair opportunity because you wouldn't be able to cross-examine the witnesses using the documents.

[00:31:43] Speaker 01:
Your Honor, the witnesses testified that they were not aware of any documents that were destroyed that related to corroboration, conception, reduction to practice, and in fact Mrs. Rhodes produced

[00:31:52] Speaker 00:
What about all the napkin sketches?

[00:31:55] Speaker 01:
Those were destroyed in 1995 after the application was filed.

[00:31:59] Speaker 01:
We produced a video cassette that the secretary transcribed dictating the disclosure for the original patent application.

[00:32:08] Speaker 01:
All of that was produced

[00:32:10] Speaker 01:
Everything that we had was produced from 1993, 1994.

[00:32:14] Speaker 03:
But I thought Mrs. Rhodes testified that in 2009 she destroyed documents that were relevant to the time of the Patent Act.

[00:32:23] Speaker 01:
No, no.

[00:32:24] Speaker 01:
She said when she moved, and I apologize I misspoke, she moved homes and got rid of stuff in her garage.

[00:32:30] Speaker 01:
She didn't say, oh, here's a file on my husband's patents, and I'm throwing that out.

[00:32:35] Speaker 01:
She had the tape.

[00:32:36] Speaker 01:
She had other information.

[00:32:37] Speaker 01:
She had correspondence with Mr. Stein that was logged on our privilege log.

[00:32:42] Speaker 03:
Well, clearly, she had some documents.

[00:32:44] Speaker 03:
The question is whether there were other documents that got destroyed.

[00:32:47] Speaker 03:
I thought she testified there were other documents that got destroyed.

[00:32:51] Speaker 01:
Not relating to this patent, she did not know.

[00:32:55] Speaker 01:
She moved 16 years later.

[00:32:58] Speaker 01:
But she testified that the documents that she was aware of, like the videocassette, and Ms.

[00:33:03] Speaker 01:
Dungan testified, and Mr. Kafari testified.

[00:33:06] Speaker 01:
Your Honor, on the 417 patent.

[00:33:10] Speaker 03:
I think we're out of time.

[00:33:11] Speaker 01:
We rely on the briefs and our other office counsel.

[00:33:13] Speaker 03:
Thank you, Your Honor.

[00:33:20] Speaker 03:
Thank you.