[00:00:02] Speaker 03: Good afternoon, ladies and gentlemen. [00:00:06] Speaker 03: I think Judge Dyke must have sat in this chair before the event. [00:00:11] Speaker 03: We only have one case before the court for argument today. [00:00:13] Speaker 03: This case was originally set for a travel day of March 23rd. [00:00:18] Speaker 03: But because the parties were not informed of that, they could not have anticipated any conflicts for that time frame. [00:00:25] Speaker 03: So we moved the argument to today. [00:00:28] Speaker 03: The case is case number 151693, Intelligent Biosystems versus Illumina Cambridge Limited. [00:00:35] Speaker 03: It is an appeal from the Patent Trial and Appeal Board. [00:00:41] Speaker 03: You want to reserve three minutes for rebuttal, Mr. Barron? [00:00:44] Speaker 02: Yes, please, Your Honor. [00:00:52] Speaker 02: May it please the Court. [00:00:54] Speaker 02: We're here today to review the PTAP's decision that [00:00:58] Speaker 02: the 537 claims were not obvious in light of Zhu, Chen, and Zakharati. [00:01:05] Speaker 02: We think they erred. [00:01:07] Speaker 02: And we think they erred as a legal matter. [00:01:09] Speaker 02: Now, there's really no doubt that Zhu and Chen cover all of the claim limitations within the claims of the 537 patent, a method of labeling, except for the identification of the protecting group on the nucleotide as an azido group or an azido methyl. [00:01:26] Speaker 02: They don't explicitly say that. [00:01:28] Speaker 02: Zavgaradny does. [00:01:29] Speaker 02: And in fact, it says, Zavgaradny says that the Zetamethyl is of special interest, and it's on the 3 prime OH, the precise area that the claims require. [00:01:39] Speaker 03: Now, isn't part of the problem here is that you simply overstated? [00:01:44] Speaker 03: I mean, you have to provide a motivation. [00:01:46] Speaker 03: It doesn't have to be the same motivation that the inventor had with respect to the claims at issue. [00:01:52] Speaker 03: It can be any possible motivation coming from anywhere. [00:01:55] Speaker 03: But you chose a very specific motivation that had to do with accomplishing what Chan accomplishes, which is SBS. [00:02:05] Speaker 03: And having stated that that was the motivation, aren't you bound by that statement? [00:02:12] Speaker 03: I mean, you didn't present anything other than that before the response. [00:02:17] Speaker 02: Two things. [00:02:18] Speaker 02: We don't run away from the fact that we absolutely said that for the motivation. [00:02:22] Speaker 02: We don't think the board as a threshold matter ruled on motivation. [00:02:26] Speaker 02: What we're reading it to read is reasonable expectation of success. [00:02:30] Speaker 02: Motivation is a flexible, expansive filter. [00:02:34] Speaker 02: We think it's just of all the constellations of art in the world that may or may not cover claims, you have to have some motivation to reach out to a couple. [00:02:42] Speaker 02: And we pointed in our petition to more than a couple to suggest why a person of skill in the art looking at the SBS method, which we understand is narrower than the claims [00:02:51] Speaker 02: in the 537, at the SBS method would look beyond what was in Jew or Chen and would look to Zabgaradni. [00:03:00] Speaker 02: It talks about going to sources for chemical synthesis. [00:03:03] Speaker 02: It talks about groups that have ether linkages, which azidomethyl has. [00:03:08] Speaker 02: Mom and Alil are mentioned by Jew. [00:03:13] Speaker 02: And in Zabgaradni, he compares mom, as we say in our petition, mom and [00:03:19] Speaker 03: But you kept referring back to accomplishing Chen's purposes. [00:03:24] Speaker 02: For motivation. [00:03:26] Speaker 02: So I think that there's two. [00:03:27] Speaker 02: I think motivation. [00:03:28] Speaker 03: Well, that's right. [00:03:29] Speaker 03: Part of the problem is, with respect, the parties seem to be talking all over each other. [00:03:33] Speaker 03: And I admit that the board's use of its language as it related to likelihood of success was, if not improper, at least confusing and misleading. [00:03:46] Speaker 03: But the problem is we actually review judgments, not the particular words chosen. [00:03:52] Speaker 03: So we have to look at the findings of fact and to see if those findings of fact support the board's conclusion that there was no showing of a motivation to combine, ultimately. [00:04:03] Speaker 03: Right? [00:04:04] Speaker 02: I agree with that. [00:04:06] Speaker 02: I mean, we don't see the board finding that. [00:04:09] Speaker 02: I agree that it's one of the problems, not a modicum of clarity. [00:04:14] Speaker 02: We think that they ruled on expectation of the words. [00:04:17] Speaker 01: So you think that they kind of just said, even if there was a motivation to combine, there's no reasonable expectation of success here? [00:04:25] Speaker 01: Yeah. [00:04:26] Speaker 01: I think the board's decision is very fuzzy here, too. [00:04:28] Speaker 01: But what it really seemed to me was they're saying, because nobody would think that this would work, there was no motivation to combine, which are two different things, I think. [00:04:36] Speaker 02: I agree with that. [00:04:37] Speaker 02: And I think that's a good point, Your Honor. [00:04:38] Speaker 02: And I think that the important way to, if we're going to view it through motivation, [00:04:42] Speaker 02: then the legal issue for Illumina to respond to is teaching away. [00:04:47] Speaker 02: I mean, that's the standard. [00:04:49] Speaker 02: It's an incredibly high standard. [00:04:51] Speaker 02: Illumina knew it's an incredibly high standard. [00:04:53] Speaker 02: They stayed away from it. [00:04:54] Speaker 02: They cite it to Pugh tantalizingly, but then they never go there because they know they can't. [00:04:59] Speaker 02: Because there's nothing in Zhu or Chen that say, don't do azetamethyl. [00:05:04] Speaker 02: And there's certainly nothing in Zabarotni that says, by the way, this absolutely cannot be cleaved by any [00:05:10] Speaker 02: standard higher than 80%. [00:05:12] Speaker 03: But what Chen teaches, though, is SBS that has a quantitative value to it, right? [00:05:21] Speaker 02: Chen says that it would be that this method should have cleaving efficiency near 100%. [00:05:28] Speaker 03: So we think there's a... And if Savgrani doesn't give you that kind of cleaving efficiency, then why would you put the two together? [00:05:36] Speaker 02: So I think that's another legal error. [00:05:38] Speaker 02: I don't think we reject that person of skill in the art will look at Zabgarati and say, oh, no, I can't do that. [00:05:45] Speaker 02: Whether it's motivation. [00:05:47] Speaker 03: Well, that's not a legal error. [00:05:48] Speaker 03: That's a factual error you're saying. [00:05:50] Speaker 02: Well, I don't think so. [00:05:51] Speaker 02: I would say no for two reasons. [00:05:53] Speaker 02: One, I think that what the board did or what Illumina is trying to justify is stripping that posita of their ordinary creativity, which is absolutely a legal issue. [00:06:06] Speaker 01: uh... what you have here or whether whether actually approach the hundred-percent believability that shen required or not is a factual issue i think that the issue of yes but i don't think that's the standard i think that that's imposing an anticipation and that's actually this is not the first i'm not asking you what conclusion you take from it [00:06:35] Speaker 01: But whether or not it teaches 100% cleavability for this azido substance is a factual issue. [00:06:43] Speaker 01: And I don't see how there's a lack of substantial evidence to show that it doesn't. [00:06:48] Speaker 02: So I have two responses to that. [00:06:51] Speaker 02: One, it is factual. [00:06:52] Speaker 02: But the Walder case that we cite says that if the standard, the legal standard, whether it's the Posada standard, stripping the person of ordinary creativity, or [00:07:05] Speaker 02: an improper standard, either if it's motivation, it should have been teaching away, which is not where it has to say, don't do it. [00:07:14] Speaker 03: Well, the teaching away relates to you teach away from the use of this as it relates to the claimed invention, right? [00:07:23] Speaker 03: And the problem is that, yes, the concept here is a little bit like teaching away, but it's not really a teaching away analysis. [00:07:29] Speaker 03: What you said is your motivation is [00:07:32] Speaker 03: to combine this to accomplish Chen's SBS. [00:07:36] Speaker 03: And what the board found, maybe not as clearly as it could, but it seems to me that what the board found is, well, you wouldn't put those together for that purpose because they wouldn't accomplish that purpose. [00:07:50] Speaker 03: It just simply wouldn't accomplish what Chen accomplishes. [00:07:54] Speaker 02: And I think that a person of skill in the art, you don't need certainty. [00:07:59] Speaker 02: You don't need a source to say it can be cleaved. [00:08:02] Speaker 02: at 100% because Zabgarany doesn't have that. [00:08:05] Speaker 02: That's important to remember. [00:08:07] Speaker 02: Zabgarany just says, place it here. [00:08:09] Speaker 02: And it can be cleaved under mild and specific conditions. [00:08:12] Speaker 02: And what we do say in the petition and in our supporting declaration of our expert, as well as in his first deposition before even there was a response, is look, a person's going to look at the structural things. [00:08:26] Speaker 02: What Ju and Chen teach our protecting group, it should be small. [00:08:31] Speaker 02: That you can't optimize. [00:08:33] Speaker 02: It's either small or it's not. [00:08:34] Speaker 02: Zabgarani said, and a person in Scalia would say, OK, is even a methyl small. [00:08:39] Speaker 02: It needs to be cleaved under mild and specific conditions. [00:08:43] Speaker 02: And that has a causal connection, as we mentioned in the petition and in our expert's deposition also. [00:08:52] Speaker 02: That has a causal connection. [00:08:53] Speaker 02: I mean, if something is mild and specific, it means two things about the protecting group. [00:08:58] Speaker 02: It means the bonds are not [00:08:59] Speaker 02: too stringent, so it actually can be cleaved, so there's a structural element to that. [00:09:03] Speaker 02: But beyond that, if it can be cleaved under mild conditions and it can be cleaved under specific conditions, which means tailored just to that bond and not everything in the solution, then you can really, you're in a setting where as a person of skill and art, you can optimize. [00:09:19] Speaker 03: And one of our point- What evidence did you give the board that a person of skill and art would have thought in the face of Lubino that it actually could accomplish the things you were talking about accomplishing? [00:09:30] Speaker 02: So we, well, first of all, we cite to, we say that Lubano actually is praising azetomethyl and that the whole thing. [00:09:39] Speaker 02: But says you'll only get to 60 to 80 percent. [00:09:41] Speaker 02: But it uses the wrong standard. [00:09:43] Speaker 02: It uses pure product yield. [00:09:45] Speaker 02: And that's not something that Illumina ever submitted evidence. [00:09:48] Speaker 02: If you want to talk about substantial evidence, the fact is that only IBS presented evidence on the issue of cleaving efficiency, not pure product yield. [00:09:58] Speaker 02: So, and it sounds like, oh, it's a formal, it's not, it's a very real thing. [00:10:05] Speaker 03: Yeah, but you had the burden here. [00:10:06] Speaker 02: No, no, I understand that, but Lubino was not, we cite to Zabgrani, Zabgrani doesn't cite to Lubino, they injected Lubino. [00:10:16] Speaker 03: But you don't dispute that Lubino was in the art and that one skilled the art would have understood all of these things, right? [00:10:24] Speaker 02: Here's what I think. [00:10:24] Speaker 02: I think I'm a person of skill in the art. [00:10:26] Speaker 02: I look at Zabrani. [00:10:27] Speaker 02: Let's say I look at Lubino, too, and I say the 60 to 80. [00:10:30] Speaker 02: The standard is I've been trained. [00:10:33] Speaker 02: Remember, the person of skill in the art, there's no debate, has a PhD in nucleotide chemistry, and then five more years in a lab or on the bench. [00:10:42] Speaker 02: Extremely high skill we're talking about. [00:10:44] Speaker 02: And really, the issue is, will that person know what cleaving conditions may exist to cleave that protecting group suitably? [00:10:53] Speaker 02: And the patent. [00:10:54] Speaker 02: Suitably, there's your question. [00:10:56] Speaker 02: OK, 100%. [00:10:56] Speaker 02: Let's say 100%. [00:10:57] Speaker 02: Let's stick with 100%, OK, within your, because we, I mean, I continue to see. [00:11:01] Speaker 03: You injected that into this, in your petition. [00:11:04] Speaker 03: You were the one who injected the 100% concept, right? [00:11:07] Speaker 02: We injected SBS for motivation. [00:11:09] Speaker 02: If you look at what we say for reasonable expectation success, we go back to labeling. [00:11:14] Speaker 02: And so we said, for the motivation, you would look to Ju and Chen and SBS. [00:11:21] Speaker 02: But for the reasonable expectation of success, which is a different thing, OK, you've looked at the two resources. [00:11:27] Speaker 02: There's enough to guide you to those two. [00:11:29] Speaker 02: Now will a person in skill in the art actually think, can I get this to work according to the way I need to? [00:11:34] Speaker 03: The problem is, is the way I read the board opinion despite its [00:11:38] Speaker 03: loose language is that it never actually got to the kind of reasonable expectation of success that we think about as it relates to the claims. [00:11:47] Speaker 03: It was talking about success in getting back to Chen, which is what you're saying. [00:11:52] Speaker 03: Accomplishing what Chen accomplishes, which is SBS. [00:11:55] Speaker 03: And I agree that this claim doesn't claim SBS. [00:11:59] Speaker 03: But that's what you chose to say was the motivation, and you chose to show that that was the motivation. [00:12:06] Speaker 03: I mean, aren't you stuck with, I mean, I think that, I don't think you should have said that was the motivation, but that's the only one you came up with. [00:12:14] Speaker 02: So I will address that motivate, let me address that motivation. [00:12:18] Speaker 02: The a hundred percent, let's assume we're in a hundred percent world. [00:12:22] Speaker 02: First, I think that fundamentally a person's skill in the art would look at Zabroni and Lubano and all the other art, Canuzzi, which is cited by Lubano, Maggen Engel, [00:12:35] Speaker 02: which are talking about this reaction, which is a 100-year-old reaction that cleaves an azidomethyl group, the sardinia reaction, quantitatively. [00:12:45] Speaker 02: They would not be deterred by Lubano. [00:12:48] Speaker 02: They would not feel like they had to accept the conditions that were in Zafgarati. [00:12:54] Speaker 01: That's the real question. [00:12:56] Speaker 01: On their face, they suggest that they might not work. [00:13:00] Speaker 01: Isn't that substantial evidence for the board's decision that you just wouldn't go to Zavok or Agnifrushche? [00:13:06] Speaker 02: But I think that that, first of all, I think the legal area. [00:13:08] Speaker 01: What's your evidence that they would? [00:13:10] Speaker 01: I mean, it is your burden. [00:13:12] Speaker 02: It is my burden. [00:13:13] Speaker 02: But I think that the burden isn't that I have to show you a document, an art that says, here is evidence that azetamethyl can, in DNA sequencing, be cleaved quantitatively. [00:13:25] Speaker 02: The question is, is it possible? [00:13:28] Speaker 02: And motivation? [00:13:29] Speaker 01: No, but I mean, your theory, and maybe I've got this wrong, but your theory is to accomplish this and show this, you use the specific SBS methodology in Shen and combine it with Zavogorodny. [00:13:44] Speaker 01: And you have to show some reason that a skilled artisan would have looked to Zavogorodny. [00:13:51] Speaker 01: You can't just say, well, it's in the field, so they could have looked at it. [00:13:54] Speaker 02: I agree with you, Your Honor, absolutely. [00:13:56] Speaker 01: So what evidence is there that they would have looked to it? [00:13:59] Speaker 01: strong enough to overcome the evidence on the face of those two references that you might not have, because they wouldn't work the way Shin wanted it to. [00:14:08] Speaker 02: Well, first of all, Chen actually mentions Isido as a group to block the 3 prime OH. [00:14:12] Speaker 02: I think that's significant. [00:14:14] Speaker 02: And certainly direction. [00:14:16] Speaker 01: Right, but we're in the substantial evidence world here. [00:14:19] Speaker 01: I mean, I understand you've tried to frame this as a legal error, but this to me seems a substantial evidence question about whether there was a motivation to combine. [00:14:28] Speaker 01: If you're going to win, you're going to have to show me that it was so obvious that a person would have gone to Zapparadne that the board's findings to the contrary lack substantial evidence. [00:14:39] Speaker 02: And we believe that we did. [00:14:40] Speaker 02: And I just have my eye on the clock because I'd like to preserve a little bit. [00:14:44] Speaker 03: I'll give you a bottle back. [00:14:45] Speaker 03: We've only got one argument this afternoon. [00:14:47] Speaker 02: OK. [00:14:47] Speaker 02: Thank you, Your Honor. [00:14:49] Speaker 03: What evidence is that? [00:14:50] Speaker 02: I think the evidence is Canuzzi, which says that the cleaving efficiency is 100% or quantitative. [00:14:58] Speaker 02: Mag and angle, the cleaving efficiency, especially once I optimize it a little bit, gets too quantitative. [00:15:06] Speaker 02: Mag and angle also says, remember, this reaction is a two-step. [00:15:09] Speaker 02: There's the conversion of the azide to an amine, and then the hydrolyzation of the amine, which really is, everyone agrees, is incredibly rapid. [00:15:21] Speaker 02: So there is evidence, and we also don't think, we think that the standard is [00:15:26] Speaker 02: And I know I'm going back to this, and I don't mean to not. [00:15:30] Speaker 02: Let me try to address your question more. [00:15:32] Speaker 02: I think that is evidence. [00:15:35] Speaker 02: And I don't think that what Illumina has done other than say, here's something that says 60 to 80, not in Zabgarati, but in something else that's like Zabgarati, and that that would make a person of skill in the art conclude definitively [00:15:51] Speaker 01: I mean, if I were to create a fact, maybe I would agree with you. [00:15:56] Speaker 01: But the board made that as a finding of fact. [00:15:58] Speaker 01: So that's, you know, we can't just disregard it because you don't think it's good evidence. [00:16:05] Speaker 02: Well, but just because it's a substantial evidence standard doesn't mean that they can just, I mean, there is still a standard, and there still is, thankfully, a review. [00:16:16] Speaker 02: And I think that their evidence, [00:16:19] Speaker 02: which also under Walder is misapplying the standard to get there, is this corrupted view that Lubano is 60 to 80 and can't be optimized. [00:16:32] Speaker 02: Or that a person of scale in the arc, when faced with the situation, would not think to themselves, well, can I think of any cleaving conditions that can get me to 100%? [00:16:43] Speaker 02: Is quantitative 100% or essentially 100%? [00:16:47] Speaker 02: It's essentially 100%. [00:16:48] Speaker 03: The problem I'm still having is the notion that you didn't say that one of skill in the art would understand that you can accomplish a type of cleaving. [00:17:02] Speaker 03: You said one in the art would combine these things for purposes of accomplishing the type of cleaving that would lead to your ability to conduct synthesis by sequencing. [00:17:14] Speaker 03: So, I mean, you took the board down that road. [00:17:18] Speaker 03: You went down that road. [00:17:20] Speaker 03: Where in the record do you have, before the reply, which we can address later, but do you have anything that says to the board, or alternatively, it would show if you don't need the actual SBS, you could accomplish this other thing? [00:17:38] Speaker 02: We do. [00:17:38] Speaker 02: In our petition, we don't talk in the petition explicitly about cleaving conditions. [00:17:45] Speaker 02: Because to take a step back, [00:17:49] Speaker 02: We still did it by the claims with the claim chart. [00:17:52] Speaker 02: And not only is there not quantitative cleavage in the claims, but the patent itself says cleaving conditions would be obvious. [00:17:59] Speaker 02: They say protecting group would be obvious. [00:18:01] Speaker 02: They construe the claims to say the protecting group doesn't even need to be removed, which happened after our petition. [00:18:09] Speaker 02: So we have to react to that. [00:18:11] Speaker 02: And they base that on the ground that they shouldn't. [00:18:15] Speaker 03: come up with that construction for purposes of assessing the petition in the first place? [00:18:20] Speaker 02: They did. [00:18:20] Speaker 02: But I'm saying the sequence of events is we submit our petition and the backing declaration. [00:18:28] Speaker 02: And then thereafter, after discovery, there's the petition granting. [00:18:33] Speaker 02: And we think that that shows that we did meet the prima facie case, like the Belden case discussed in some way. [00:18:40] Speaker 03: But if you thought that that claim construction [00:18:43] Speaker 03: changed things, why didn't you ask to amend your petitions to not require SBS as a motivation to combine? [00:18:52] Speaker 02: Well, first, we handled it in the reply. [00:18:56] Speaker 02: I mean, the claim construction was the claim construction. [00:18:59] Speaker 02: And then there was the response, and we handled everything in the reply. [00:19:03] Speaker 02: And we felt that everything we said in the reply, and I think that's right, was responding to what was in the response. [00:19:12] Speaker 02: I think also that it's not formalistic or superficial of us to point out that when we were talking about motivation, which is this expansive and flexible standard, we did talk about the SBS motivation. [00:19:28] Speaker 02: And we did say, look, a person's skill in the art, there are the things that a person's skill in the art can't optimize like size, placement, bonds. [00:19:37] Speaker 02: Let's look at that, ether bonds. [00:19:39] Speaker 02: These are all the indications and directions and teachings that Ju and Chen are providing for the protecting group. [00:19:45] Speaker 02: And one even says, look at the ZETO groups. [00:19:48] Speaker 02: And then there's the things that a person's, and Zab Grani gives all of that. [00:19:52] Speaker 02: And then a person's skill in the art, this person's skill in the art is going to say, I can optimize that. [00:19:58] Speaker 02: Now, but in our petition, I'm sorry, your honor, go ahead. [00:20:03] Speaker 03: You mentioned the reply briefing. [00:20:04] Speaker 03: I want to give you an opportunity to say something about it so that you don't waive any ability to respond. [00:20:08] Speaker 03: to it, but even if we agreed with you that some of the arguments that were presented in the reply brief probably should have been allowed because they do sort of flow from your original petition, even if we agree with that, don't you have a problem in that those arguments were not predicated on your initial expert report? [00:20:31] Speaker 03: And that the board found that the way you [00:20:36] Speaker 03: incorporated your reply expert report was separately inappropriate? [00:20:40] Speaker 02: I don't think we do, Your Honor. [00:20:42] Speaker 02: First, I think the board did rule on it. [00:20:45] Speaker 02: And obviously, part of my job is to convince this panel that they got that part wrong, too. [00:20:53] Speaker 02: The responses, I think, do have a, or our reply does have a connection to the petition. [00:21:00] Speaker 02: I think, again, in the petition, we say, and in the declaration, we say, [00:21:04] Speaker 02: If a person of skill in the art finds these structural things, then they will also find these other functional issues. [00:21:14] Speaker 02: We said such as, and we mentioned a couple like incorporation, there was no data. [00:21:20] Speaker 02: This is the pioneering first days. [00:21:22] Speaker 02: Zhu, Chen, no one had data. [00:21:25] Speaker 02: No one had actually done anything except consider prophetic patterns. [00:21:31] Speaker 02: We said such as. [00:21:34] Speaker 02: We'd actually given the patent at the time and the claims in our claim chart, frankly, it didn't seem like the cleaving condition, particularly given the fact that to get that patent, Illumina said to the world, don't worry about cleaving efficiently. [00:21:49] Speaker 02: Don't worry about the cleaving conditions. [00:21:51] Speaker 02: A person of skill in the art will know that. [00:21:53] Speaker 02: And in the Illumina Columbia case, which involves related technology, that was a big issue for the case. [00:21:58] Speaker 02: Where in that one, Columbia was arguing a very related technology that, well, a person wouldn't have known to synthesize the nucleotide in certain different ways. [00:22:11] Speaker 02: It was too complicated, too beyond the ken. [00:22:14] Speaker 02: And the court said, well, then they should have disclosed it. [00:22:20] Speaker 02: Because otherwise, you have this basic injustice. [00:22:23] Speaker 02: The basic injustice is there's a patent out there that ties up commerce between competitors. [00:22:28] Speaker 02: on grounds that it admits are obvious. [00:22:35] Speaker 03: I'll give you three minutes for rebuttaling. [00:22:39] Speaker 03: We'll give your friends on the other side an extra six minutes if they need it. [00:22:57] Speaker 00: May it please the court [00:22:58] Speaker 00: Bill Zimmerman of Kenobi Martins for Appellee Illumina. [00:23:02] Speaker 00: I'd like to start with the issue of reasonable expectation of success and whether the board applied an improper standard. [00:23:10] Speaker 00: I think we can all agree that the board articulated the correct standard. [00:23:14] Speaker 00: It's on pages 9 and 10 of the opinion citing the KSR and the DePoy case. [00:23:19] Speaker 00: The question is, did they apply that standard or some other standard? [00:23:24] Speaker 03: Well, wait. [00:23:26] Speaker 03: If the board was looking [00:23:28] Speaker 03: to the prior art references and to say, are we looking to see whether there's a reasonable expectation of success in accomplishing what the prior art references accomplished, then that would have been wrong, right? [00:23:40] Speaker 00: It would have. [00:23:41] Speaker 00: But if you look at what they did here, they didn't do that. [00:23:46] Speaker 00: And I'll walk you through how we get there. [00:23:50] Speaker 00: IBS relies on two quotes from the opinion, and they're on pages 14 and 21. [00:23:54] Speaker 00: They're the only time that the board says, [00:23:58] Speaker 00: expected. [00:23:59] Speaker 00: And the quotes are, the prior art suggests that an ordinary artisan would not have expected Zavgorodny's Zazito methyl group to be removed quantitatively as Chen requires. [00:24:11] Speaker 03: But then they couched that as if they were doing a reasonable expectation of success analysis. [00:24:15] Speaker 03: But they weren't. [00:24:17] Speaker 00: They weren't. [00:24:18] Speaker 00: They were responding directly to an argument. [00:24:20] Speaker 00: Or if they did, it was a wrong line. [00:24:21] Speaker 00: Well, they weren't. [00:24:22] Speaker 00: They were responding directly to an argument that IBS made in the petition. [00:24:27] Speaker 00: If you look at page 1146 of the joint appendix, and this is the declaration of- Which volume is that in? [00:24:35] Speaker 00: It's in volume two. [00:24:43] Speaker 00: And this is the opening expert report of IBS's expert. [00:24:49] Speaker 00: And in paragraph 76, the expert and IBS acknowledge [00:24:55] Speaker 00: the criteria for successful use of three prime blocking groups that are set forth in Chen. [00:25:02] Speaker 00: This is their opening petition and supporting declaration. [00:25:05] Speaker 00: And one of the criteria is the availability of mild conditions for rapid and quantitative de-blocking. [00:25:13] Speaker 00: Now, there's no dispute here that that quantitative blocking means essentially 100%. [00:25:19] Speaker 00: In page 26, footnote 10 of their brief, IBS admits that. [00:25:23] Speaker 00: Their expert also admitted it at Joint Appendix 3586 and 87. [00:25:29] Speaker 00: Then if you go over to paragraph 77 of the declaration on the next page, one of ordinary skill in the ORT, in order to improve the efficiency, reliability, and robustness of the sequencing by synthesis method taught in Chen, would be motivated to use other protecting groups [00:25:48] Speaker 00: that meet the criteria of Chen. [00:25:51] Speaker 00: So they've imposed that the motivation requires meeting Chen's criteria, which they've already said is 100% efficiency. [00:25:59] Speaker 03: But isn't really your argument just that they should be hoisted on their own petard because they phrased it wrong? [00:26:05] Speaker 00: Well, no. [00:26:07] Speaker 00: They should be hoisted on their own petard for phrasing it wrong. [00:26:09] Speaker 00: But if you go over to paragraph 81, this is where the main issue in the board's opinion comes from. [00:26:16] Speaker 00: IBS argued that [00:26:17] Speaker 00: One of ordinary skill in the art would also have expected the azido methyl protecting group to possess the remaining desired functional properties from Chen. [00:26:27] Speaker 00: So they say one of skill in the art would have expected that Zabgaradny has this. [00:26:33] Speaker 00: The two things they quote from the board are simply the board's factual findings that no, the evidence shows one would not have expected that. [00:26:43] Speaker 00: The board wasn't talking about expectation of success [00:26:46] Speaker 00: in making the claimed invention, the board was responding directly to what their expert said would have been expected based on the combination of Shannon's Abgarati or Julie's Abgarati. [00:26:58] Speaker 03: I agree with you that that's a fair reading of what the board said, but it also would be a fair reading of what the board said to say they applied the wrong legal standard. [00:27:08] Speaker 00: In view of the opinion and the quoting of the correct legal standard and the fact that what they say [00:27:14] Speaker 00: directly responds to what was argued by the expert, I would posit that the more coherent reading is they were responding directly to what was argued. [00:27:24] Speaker 00: And IBS has taken snippets of the opinion in an effort to try to manufacture a legal issue. [00:27:30] Speaker 03: What if all they said in their petition was that one of ordinary skill in the art would have been motivated to combine the Chen [00:27:44] Speaker 03: to the extent it contains a labeling element, and would have been motivated to combine that with Zavgorodny to the extent that it allows for cleaving of the protective unit in a milder way, and they didn't say for purposes of accomplishing SBS. [00:28:05] Speaker 03: Would that have changed the whole thing? [00:28:07] Speaker 00: No. [00:28:08] Speaker 00: The board went on to say that IBS argued this in the context of SBS. [00:28:15] Speaker 00: But even if they had, and I believe it's on page 18 of the board's opinion, where they say there's no evidence or motivation in this record of combining Chen or Ju with Zavgaradny for the smaller or the broader purpose of labeling. [00:28:34] Speaker 00: there's simply no evidence that one would have been motivated to do that on this record. [00:28:40] Speaker 00: So the board took a belt and suspenders approach. [00:28:42] Speaker 00: They said, on the narrow issue of SBS, you haven't shown that one would make the combination. [00:28:48] Speaker 03: And why did the board conclude that? [00:28:51] Speaker 03: Did the board say that the [00:28:53] Speaker 03: It was only because they only tried to prove that you would make the combination for purposes of accomplishing SBS? [00:28:59] Speaker 00: There was no expert testimony in the petition. [00:29:02] Speaker 00: There was no argument in the petition that you would combine Ju or Chen with Zapier Rodney for any purpose other than SBS. [00:29:11] Speaker 00: The only argument that was made in the petition, and it's in paragraph 77, and there's a corresponding, paragraph 77 on JA 1147 deals with the [00:29:22] Speaker 00: Chen and Zavgrani combination. [00:29:25] Speaker 00: There's a matching paragraph for Ju and Chen. [00:29:27] Speaker 00: But the only reason they gave for combining these is to improve the efficiency, reliability, and robustness of the sequencing by synthesis method taught in Chen. [00:29:38] Speaker 03: You understand the difficulty here that one would have looking at this from our perspective, and that is that this patent really doesn't have anything to do with SBS. [00:29:47] Speaker 00: No. [00:29:48] Speaker 00: Maybe it should have. [00:29:50] Speaker 03: I don't understand the restriction requirement, and I'm not sure why you didn't fight it. [00:29:54] Speaker 03: But putting that aside, this patent doesn't claim SPS. [00:29:58] Speaker 00: The claims at issue don't claim SPS. [00:30:01] Speaker 00: The uses of these nucleotides is predominantly SPS. [00:30:06] Speaker 00: The reason you make these nucleotides [00:30:09] Speaker 00: is SBS. [00:30:10] Speaker 00: That is the primary use of them. [00:30:11] Speaker 03: But the claim doesn't say... The claim is not limited to that. [00:30:14] Speaker 03: It doesn't say labeling and removal of protective group, so as to allow SBS to occur. [00:30:22] Speaker 00: It doesn't. [00:30:23] Speaker 00: The claim says that the three prime protecting group has to be an azido group, and it has to be removable to regenerate a three prime hydroxyl group. [00:30:32] Speaker 00: The reason you regenerate that is for purposes of SBS. [00:30:36] Speaker 00: But it wasn't the patent [00:30:39] Speaker 00: that set the framework we're working in. [00:30:42] Speaker 00: It was IBS's petition. [00:30:44] Speaker 00: They could have come to the board and said, here's a bunch of art and labeling. [00:30:49] Speaker 00: Here's a declaration on why somebody would do this for labeling. [00:30:52] Speaker 00: But there is no evidence in this record that anybody would do this for any reason other than SPS. [00:30:59] Speaker 00: And the only challenge that was presented was based on SPS. [00:31:03] Speaker 00: And at the hearing before the board, when IBS tried to argue [00:31:08] Speaker 00: that this should be for a reason beyond labeling, the board called them on it. [00:31:13] Speaker 00: And the quote is, it's at Joint Appendix 620. [00:31:17] Speaker 00: But to a certain extent, the art that's being relied upon is all sequencing by synthesis, i.e., so to a certain extent, that's kind of the environment that we are working in because that's what the challenges are based on. [00:31:29] Speaker 00: The board recognized that it was a narrow challenge [00:31:33] Speaker 00: based on a particular motivation to combine these things. [00:31:36] Speaker 00: Could IBS have done it differently? [00:31:38] Speaker 00: Yes. [00:31:40] Speaker 00: But what they chose to do, and the reason they gave for putting these things together, was strictly for sequencing by synthesis. [00:31:48] Speaker 00: Now, on the idea that there are multiple things you could have done to modify the removal conditions, and this gets into whether their evidence was or was not improper. [00:32:00] Speaker 00: The board found that the only thing they argued was SPS. [00:32:05] Speaker 00: They didn't argue any type of labeling until reply. [00:32:09] Speaker 00: They didn't argue changing Zavgarodny's removal conditions at all until reply. [00:32:15] Speaker 00: They didn't present any evidence showing that Zavgarodny's removal conditions would be quantitative or give you 100% removal, even though they acknowledged it in their petition and their supporting declaration. [00:32:29] Speaker 00: All of this evidence came on reply. [00:32:31] Speaker 00: And the board said, wait a minute. [00:32:34] Speaker 00: Our rules require that if you need a piece of evidence for your prima facie case, it has to be on reply. [00:32:42] Speaker 00: And you can't submit new arguments. [00:32:45] Speaker 00: And there is nowhere in the petition or the supporting declaration that talks about modifying Zavkaradne's removal conditions. [00:32:52] Speaker 00: There's no discussion of use other than SBS, no evidence of any sort. [00:32:57] Speaker 00: And so the board properly excluded all of their reply evidence. [00:33:01] Speaker 00: And under the trial guidelines for the board, they are entitled to exclude the reply and the supporting evidence when you violate the scope of reply. [00:33:14] Speaker 00: So any violation, you can exclude the entirety of the reply. [00:33:18] Speaker 00: And the trial guidelines are very specific, that they're not going to sort out what's proper and what's not proper. [00:33:24] Speaker 00: And IBS can't point to any place [00:33:27] Speaker 00: in its petition or supporting evidence where they argued modifying Zabgorodny's removal conditions or a broader use than SBS. [00:33:37] Speaker 00: Moreover, they improperly incorporated materials from Brandt-Schaub's second declaration that aren't cited in the reply brief. [00:33:46] Speaker 00: There are 16 exhibits in his second declaration that aren't cited anywhere in the reply. [00:33:53] Speaker 00: And that violates the board's rule on improper incorporation, which the board found. [00:33:57] Speaker 00: So before they can rely on any of this evidence to support their appeal, they have to show that the board abused its discretion in excluding this evidence. [00:34:06] Speaker 00: On this record, we don't believe they can meet that standard. [00:34:09] Speaker 00: They haven't shown where these things were in the petition and addressed each and every basis for the exclusion, because if any of them apply, the board was proper in excluding the evidence. [00:34:20] Speaker 00: That includes the Newsy reference. [00:34:23] Speaker 00: The Newsy reference is the one thing they point to and say, well, this shows that one of skill in the art would have expected quantitative cleavage using Zavkaradny's removal conditions. [00:34:36] Speaker 00: The problem is, it wasn't in the petition. [00:34:38] Speaker 00: It wasn't in the supporting declaration. [00:34:40] Speaker 00: Well, Mr. Barron said it was in the petition. [00:34:42] Speaker 00: The Newsy reference first came in on reply through Dr. Brandschoud's second declaration. [00:34:49] Speaker 03: Was the Newsy reference referenced in Luvenau? [00:34:52] Speaker 00: No. [00:34:53] Speaker 00: Lubano refers to the Newsy reference in a citation. [00:34:59] Speaker 00: But the reference itself wasn't proffered. [00:35:02] Speaker 00: It wasn't discussed in the petition. [00:35:06] Speaker 00: It wasn't discussed in the opening declaration. [00:35:08] Speaker 00: It only came in in reply. [00:35:10] Speaker 00: And when you look at the Newsy reference, it uses triphenylphosphine in a solvent called THF. [00:35:19] Speaker 00: And THF wouldn't work with this system [00:35:22] Speaker 00: because it would destroy the DNA. [00:35:24] Speaker 00: It would denature the DNA. [00:35:26] Speaker 00: Moreover, Newsy didn't involve nucleotides or nucleosides, which is what we're analyzing here. [00:35:33] Speaker 00: And so the data in Newsy doesn't show quantitative cleavage, even if you were to consider the reference. [00:35:43] Speaker 00: The other one they cite, too, is MAG and Engels. [00:35:45] Speaker 00: That one uses triphenylphosphine with pyridine. [00:35:49] Speaker 00: Pyridine was also a known [00:35:51] Speaker 00: DNA denaturing agent. [00:35:53] Speaker 00: And so the board's findings that even if we considered these references, they wouldn't carry your burden of showing that they would work with Ju and Chen is supported by substantial evidence in this case. [00:36:07] Speaker 00: I would like to turn to one separate issue. [00:36:10] Speaker 00: And it came up during Mr. Barron's argument, and it came up a couple of times in the brief, this idea that Chen itself teaches an Isiddo group. [00:36:20] Speaker 00: And therefore, you could get a basis for obviousness from Chen. [00:36:25] Speaker 00: It's at page joint appendix 1011, lines 12 through 17. [00:36:32] Speaker 00: And they reference it on pages 16 and 25 of their brief. [00:36:38] Speaker 00: Chen does disclose an Isiddo group as one of the [00:36:42] Speaker 00: groups you can put at the three prime position. [00:36:46] Speaker 03: And they say that in their petitions. [00:36:48] Speaker 00: They do. [00:36:49] Speaker 00: And the board cited it in the institution decision. [00:36:53] Speaker 00: But it's noticeably absent from the board's final decision. [00:36:57] Speaker 00: And there's a reason. [00:36:59] Speaker 00: Their expert admitted at his deposition, and it's joint appendix 5988 through 89, that [00:37:08] Speaker 00: This particular group in Chen is not removable to regenerate a 3 prime hydroxyl group. [00:37:16] Speaker 00: So it doesn't meet the claim language that it has to be removable or modifiable to regenerate that 3 prime hydroxyl group. [00:37:26] Speaker 00: That's why the board never addressed it. [00:37:27] Speaker 00: That's why this argument never went anywhere, because their own expert admitted that what's disclosed in Chen doesn't get you what you need for the claim. [00:37:36] Speaker 00: And so the issue went away. [00:37:37] Speaker 03: What you need for the claim? [00:37:38] Speaker 03: they would have needed to practice Chen? [00:37:42] Speaker 00: Both. [00:37:43] Speaker 00: In order to practice Chen's SBS method, you have to block the three prime position and then remove it, regenerate a three prime OH so that the next one can attach. [00:37:54] Speaker 00: And their expert said that the N3 group disclosed in Chen, you can remove it, but it doesn't regenerate a three prime OH group. [00:38:03] Speaker 00: And so it wouldn't work for SBS. [00:38:06] Speaker 03: Right. [00:38:06] Speaker 03: It wouldn't work for SBS, but it would work for the claims. [00:38:09] Speaker 00: No. [00:38:10] Speaker 00: The claim here says that it has to be removable or modifiable to regenerate a 3 prime OH. [00:38:18] Speaker 03: And their expert admitted... Say to regenerate or just say just capable of being removed? [00:38:24] Speaker 00: The exact claim language is said protecting group can be modified or removed to expose a 3 prime OH group. [00:38:36] Speaker 00: And their expert admitted that when you remove the N3 group disclosed in Chen, it doesn't create a 3 prime OH group. [00:38:44] Speaker 00: And so it doesn't meet the claim language. [00:38:45] Speaker 00: It wouldn't work for the SBS method of Chen. [00:38:48] Speaker 00: And so that issue became a non-event. [00:38:52] Speaker 00: But given the couple of references in the brief and during oral argument, I wanted to make sure there was no confusion about that. [00:39:01] Speaker 00: And if the panel doesn't have any further questions for me. [00:39:04] Speaker 03: You can seat if there were. [00:39:05] Speaker 03: If there were references as to which there were motivation to combine, those references would not have to teach SBS in order for them to be able to read on these claims, right? [00:39:19] Speaker 00: If there were references that suggested putting Ju and Chen together with Zavkir Adhani for a purpose other than SBS, [00:39:32] Speaker 00: and that had been argued to the board, then the board would have had to consider it. [00:39:37] Speaker 00: But in this case, it wasn't. [00:39:38] Speaker 00: And so that never came of record. [00:39:41] Speaker 00: There were no references suggesting that combination. [00:39:46] Speaker 00: And IBS didn't suggest making that combination for any reason other than SPS. [00:39:54] Speaker 00: OK. [00:39:54] Speaker 00: Anything else? [00:39:55] Speaker 00: I will cede my time. [00:39:55] Speaker 00: But I do want to express my sincere thanks to the panel for moving this from the 23rd to today. [00:40:02] Speaker 00: I was the one with the scheduling conflict, and I greatly appreciate the court's indulgence. [00:40:06] Speaker 03: You're welcome. [00:40:10] Speaker 02: We take into account that lawyers are human, too. [00:40:14] Speaker 03: Or at least not on missions. [00:40:16] Speaker 03: I couldn't have known what we were doing. [00:40:18] Speaker 02: And also know that neither of us are on missions, nor kids. [00:40:23] Speaker 02: Right. [00:40:23] Speaker 03: Why don't you respond to that very last argument? [00:40:28] Speaker 03: In other words, do you agree that you never really made an argument that you could combine Zhu and Chen with or without Zab Grodny for some purpose other than accomplishing SBS? [00:40:42] Speaker 02: I agree that that was the motivation we proffered. [00:40:45] Speaker 02: It was not for expectation of success. [00:40:48] Speaker 02: I think that for motivation, that doesn't mean that the person of skill and the art has to see something that explicitly says it can be cleaved [00:40:57] Speaker 02: at 100% in order to know that this person's skill in the art would look at things and say, can I do this? [00:41:04] Speaker 02: Is it possible? [00:41:05] Speaker 02: And the fact is that Abhirani and Lubano were praising a ZETO methyl. [00:41:10] Speaker 02: And they would know better than to be, they wouldn't be tricked or fooled or deterred by the 60 to 80. [00:41:17] Speaker 02: And they would, of course, look to Canuzzi. [00:41:20] Speaker 02: And I said that Canuzzi was referred to by Lubano. [00:41:24] Speaker 02: Canuzzi was not in our petition, but Canuzzi is cited to by Louvainot. [00:41:32] Speaker 02: So once they start saying, and the board starts saying, you're stuck with these conditions in Zabgarani, that's the only conditions for cleaving that a person of Scumly Art would know, the ones that are being presented to it. [00:41:43] Speaker 02: And we think that that's wrong, legally and factually. [00:41:48] Speaker 02: And I do want to just to back up something. [00:41:51] Speaker 02: I want to read from something that [00:41:54] Speaker 02: was in our petition, and this is actually the declaration, because it was the thing I could grab easiest. [00:41:59] Speaker 02: It's at JA 1148, and it's also 81 and 82. [00:42:07] Speaker 02: And there's also at 1141, there's similar language as it relates to Zhu. [00:42:13] Speaker 02: We say, because Avgarodny, for our expert, says, teaches that azidomethyl has the foregoing chemical and structural properties taught by Chen, [00:42:22] Speaker 02: One of ordinary skill in the art would have expected the xetomethyl protecting group to possess the remaining desired functional properties of the Chen protecting groups, such as. [00:42:33] Speaker 02: Now, granted, I think we erred from thinking this was so obvious. [00:42:37] Speaker 02: And boy, I won't make that mistake again. [00:42:40] Speaker 02: But we say such as, not interfering with recognition of the modified nucleotide bipolymerase and reinatiation of the DNA synthesis. [00:42:48] Speaker 02: We do not say cleating 100%. [00:42:50] Speaker 02: But I think such as means it's illustrative. [00:42:53] Speaker 02: And I think what we're saying here is, person's skill in the art, and then also we have another deposition where our expert says, and I will get you the site in a moment, says, once I know it's mild, thank you, it's at JA 3587, where he says, and this is the first deposition, not the second. [00:43:18] Speaker 02: I think mild is an operational definition, the mild enough to achieve this objective, which is rapid and quantitative deblocking as part of this process that Chen is describing. [00:43:28] Speaker 02: So I think a person's skill in the art is going to, and we say that in our petition and in his declaration, and it's clarified again in their deposition before they even respond. [00:43:38] Speaker 02: Once you get the structural stuff, a person's skill in the art is going to think everything else is going to be possible or is going to come. [00:43:44] Speaker 02: And then we go on to say that paragraph 82 in JA 1148 [00:43:49] Speaker 02: Additionally, one of ordinary skill in the art would have had a reasonable expectation of success in making and using a nucleotide with an azidomethyl protecting group to label a nucleic acid molecule by combining the teachings of Chen and Zabrani. [00:44:04] Speaker 02: We say the same thing at 41, JA 1141, or our expert does, and we say the same in our petition with regard to Jew. [00:44:13] Speaker 02: And we also say it in our claim chart. [00:44:15] Speaker 02: So we do make. [00:44:18] Speaker 02: a distinction between motivation and labeling for the expectation of success. [00:44:26] Speaker 02: Because reasonable expectation of success is the advisor case at the tech is classically demonstrably required to be consistent with the claim scope. [00:44:38] Speaker 03: I agree with that, if that's what the board was really looking at. [00:44:41] Speaker 03: That kind of expectation of success. [00:44:44] Speaker 03: I don't know that the board ever got there. [00:44:46] Speaker 03: I mean, I think, as I said, I think it's a fair reading of what the board was trying to do to say, you said you combine them for purposes of accomplishing SBS, but there's no evidence that one would think you could accomplish SBS as lay down a chin with this combination. [00:45:06] Speaker 03: I mean, I think that's where the board was going. [00:45:08] Speaker 03: So I think you ought to focus more on whether or not, not the legal standard, but whether or not the factual findings would support that conclusion. [00:45:17] Speaker 02: Thank you. [00:45:18] Speaker 02: And as we've said and as we think it does, of course, we are relying on some evidence that is in the reply. [00:45:28] Speaker 02: What I read in the testimony and the argument that I referred to in our petition in the supporting declaration deposition, that was it. [00:45:37] Speaker 02: It was enough for the board to think we met the prima facie case. [00:45:40] Speaker 02: I will say that the board, this is not, [00:45:44] Speaker 02: This was something that they recognized, and they proceeded. [00:45:47] Speaker 02: They said, this is really about, does the azetomethyl go to the 3-prime OH? [00:45:51] Speaker 02: Does it protect it? [00:45:52] Speaker 02: And does it decouple so that it re-exposes the OH? [00:45:57] Speaker 02: And that's what Zabgarany teaches. [00:46:00] Speaker 03: I do think that Canuzi- But do you agree with your friend on the other side who said Canuzi, or however you pronounce that reference, that that one would actually not allow you to re-initiate the synthesis? [00:46:10] Speaker 02: No. [00:46:12] Speaker 02: I think that what Bill, Mr. Zimmerman was saying was, there was two points. [00:46:16] Speaker 02: One, on the issue of Chen referring to azido, there was testimony where he said, I'm reading that in the carbon. [00:46:28] Speaker 02: So basically what he said was, as I read it, it's not anticipation for at least claim one, where everything is contained in Chen. [00:46:37] Speaker 02: Because I think there it's probably attached to a carbon. [00:46:40] Speaker 02: But as he clarified when they jumped on their response, he said, look, I think you're reading that a little narrowly. [00:46:47] Speaker 02: I answered the question. [00:46:50] Speaker 02: And certainly, he refers to that in his petition and in his declaration in the petition. [00:46:57] Speaker 02: He said, I still think that Chen is pointing a person of skill in the art. [00:47:02] Speaker 02: OK, so it's not anticipation, but it's pointing us to look at, [00:47:06] Speaker 02: three prime OH hydroxyl protecting groups. [00:47:09] Speaker 02: That's what Chen is talking about at that passage. [00:47:11] Speaker 02: He says, such as, and he mentions N3. [00:47:14] Speaker 02: So it's certainly direction, just like the fact that mom is kind of one of the classic point two protecting group that Zhu identifies, and Zabvarani identifies mom too. [00:47:29] Speaker 02: And then he says, but the one that's of special interest is azenomethyl. [00:47:33] Speaker 02: So a person's skill in the art, [00:47:35] Speaker 02: Given Canuzzi, given that he's reading or she's reading, it says quantitative cleavage of azides to amines, quantitative cleavage of the second step. [00:47:46] Speaker 02: Lubano is pure product yield, which is, OK, the denominator is everything we put into the solution to begin with. [00:47:52] Speaker 02: And after I do 100 reactions, how much is left? [00:47:55] Speaker 02: And you can lose a ton of stuff. [00:47:57] Speaker 02: And Vogel, a treatise we cite too, says the difference between a cleaving efficiency and a pure product yield [00:48:05] Speaker 02: can be significantly different. [00:48:08] Speaker 03: Okay, we're way past your time. [00:48:10] Speaker 02: Thank you, Your Honor. [00:48:11] Speaker 03: All right, thank you all. [00:48:12] Speaker 03: The case will be submitted.