[00:00:00] Speaker 06:
The first case for argument this morning is 14-1746, Meng versus Chu.

[00:00:13] Speaker 06:
And I think we've got everybody straight into terms of who's arguing when, right?

[00:00:18] Speaker 02:
Yes.

[00:00:19] Speaker 06:
OK.

[00:00:20] Speaker 06:
And Mr. Perry, you're first.

[00:00:22] Speaker 06:
And you are representing.

[00:00:26] Speaker 06:
Please proceed.

[00:00:32] Speaker 01:
May it please the court?

[00:00:36] Speaker 01:
Ming's position in this appeal is straightforward.

[00:00:41] Speaker 01:
Conception of the inventions claimed in the patents in suit cannot take place until there's been an actual reduction to practice.

[00:00:51] Speaker 01:
Second, the clear and convincing evidence in the case, in the trial record, is that Ming was responsible for the actual reduction to practice.

[00:01:00] Speaker 01:
Six of the claims in the patents, in the two patents, are method claims which actually cover the work that she did to create the superconducting compounds.

[00:01:13] Speaker 06:
Is there anything about the synthesis work that your client did that requires more than the exercise of ordinary skill and the art?

[00:01:23] Speaker 01:
Everything about the synthesis process requires more than the ordinary skill and

[00:01:30] Speaker 01:
in the art.

[00:01:31] Speaker 05:
Where do we find that?

[00:01:33] Speaker 05:
Because I've read her testimony and I don't find a description in there of any work that went beyond ordinary skill.

[00:01:50] Speaker 01:
The work that she did involved applying a known method, the solid state reaction method, to these compounds

[00:02:00] Speaker 01:
through trial and error to develop the conditions which would create a superconducting compound.

[00:02:10] Speaker 05:
Right, but where do we find in the record that that involves something of more than ordinary skill?

[00:02:22] Speaker 01:
I would look to the, first I would look to the patents in that the methods in claims 11 to 15 of the

[00:02:31] Speaker 01:
866 patent, and I believe claims four and five, and the 418 patent.

[00:02:38] Speaker 01:
The work that she did was found to be worthy of a claim in the patent, to be patentable.

[00:02:49] Speaker 01:
And the method itself was patented.

[00:02:55] Speaker 01:
The process involves

[00:03:01] Speaker 01:
heating and cooling.

[00:03:02] Speaker 01:
It involves grinding small amounts of material and mixing them in prescribed formulas.

[00:03:11] Speaker 01:
And I don't know that any single element is hard to explain at this point 30 years later.

[00:03:23] Speaker 01:
But when they were doing this 30 years ago, no one else was

[00:03:31] Speaker 01:
I say she was the only person responsible for creating the compounds.

[00:03:36] Speaker 05:
Well, what's an example of a method claim that you say reflected her work that was supposed to be patentable?

[00:03:43] Speaker 01:
Claim 11.

[00:03:44] Speaker 05:
This is the 866.

[00:03:45] Speaker 01:
The 866 patent, yes.

[00:03:51] Speaker 01:
What is patented is a method for making a superconducting metal oxide comprising the steps of and then the steps are

[00:04:00] Speaker 01:
and then the steps are described.

[00:04:02] Speaker 01:
And she was responsible for developing and describing those steps.

[00:04:08] Speaker 01:
And if those steps are not followed, then the resulting compound is either degenerates or has nothing more than insulating capacities.

[00:04:24] Speaker 01:
I can't cite to the specific point here.

[00:04:26] Speaker 06:
And what corroboration?

[00:04:27] Speaker 06:
I mean, taking what you say at face value, what is the corroboration?

[00:04:31] Speaker 01:
Her lab records, which are her lab notes, which are contemporaneous documentation of her work.

[00:04:40] Speaker 01:
We have the testimony of Dr. Ken Forrester, who was working in the lab at that time and observed her work, and the testimony of Christopher Kenoletus, who worked with her to

[00:04:54] Speaker 01:
through repeated processes to produce better and better samples so that they could improve the superconducting properties.

[00:05:03] Speaker 05:
But my problem with claim 11 is that it seems to me it's directed to using one of these magnetic rear earth metals as a superconductor and that appears to be what's

[00:05:19] Speaker 05:
inventive about the claim rather than the actual method of processing.

[00:05:25] Speaker 05:
In other words, what we have here is a situation in which Chu says that he thought of making the complete substitution using the magnetic earth metals and that that was what was inventive and that the implementation of that was just a routine.

[00:05:48] Speaker 05:
And I'm not sure that

[00:05:49] Speaker 05:
This patentability of Proclaim 11 suggests that the implementation, as opposed to the implementation with respect to specific metals, is something that's novel.

[00:06:06] Speaker 01:
I appreciate that that's Dr. Chu's position, Ms.

[00:06:14] Speaker 01:
Ming's position.

[00:06:15] Speaker 01:
And if I can't convince you, then I can't convince you.

[00:06:20] Speaker 01:
the, and I don't win this appeal.

[00:06:22] Speaker 06:
Well, you're not going to, something you say today isn't going to come to you.

[00:06:25] Speaker 06:
No, I understand.

[00:06:26] Speaker 06:
I mean, what we'd like you to do is point to something in the record that would establish the curtains of your clients, as you know.

[00:06:32] Speaker 01:
No, there is no expert testimony that came in and established that the work that she did was, I, that the work she did was, it was either in the, I said,

[00:06:49] Speaker 01:
I'm sorry, I'm not normally a patent lawyer, so I'm going to misuse terms, but that it was known art.

[00:06:58] Speaker 01:
What we did have was testimony from Dr. Forrester, who said he observed that Ruling's work was crucial to the inventive process in the lab.

[00:07:10] Speaker 05:
We also heard... Where did he say that?

[00:07:13] Speaker 01:
What's the page?

[00:07:17] Speaker 01:
I don't have the citation, Your Honor.

[00:07:20] Speaker 01:
I can provide that.

[00:07:21] Speaker 01:
Let me ask you something that bothers me in particular.

[00:07:26] Speaker 03:
The District Court found that Ms.

[00:07:29] Speaker 03:
Meng's testimony was hopelessly in odds with Dr. Chu's testimony.

[00:07:35] Speaker 03:
And what bothers me is page 4457 in the record, where she signed a sworn declaration

[00:07:46] Speaker 03:
accrediting him, she says, she credited Dr. Chu with suggesting the solid-state reaction method.

[00:08:03] Speaker 03:
And it's diametrically opposed to her later testimony.

[00:08:11] Speaker 03:
And her explanation, that is, I was being nice.

[00:08:16] Speaker 01:
I don't think that's her full explanation, Your Honor.

[00:08:21] Speaker 01:
For Ms.

[00:08:21] Speaker 01:
Ming, English is her second language.

[00:08:24] Speaker 01:
She had not been in the United States for very long at that point.

[00:08:29] Speaker 01:
It's hard to go back to the time when this occurred, but there was intense public scrutiny of everything that went on related to these inventions.

[00:08:40] Speaker 01:
And she was under pressure to do

[00:08:47] Speaker 01:
to assist the University of Houston in protecting its claims in the interference action that you're referring to?

[00:08:54] Speaker 01:
I don't know.

[00:08:57] Speaker 01:
She testified at court extensively about the discussion they had over whether to use the solid-state reaction.

[00:09:04] Speaker 01:
I read the testimony.

[00:09:05] Speaker 01:
Yes.

[00:09:06] Speaker 01:
And her testimony was, this was put in front of me.

[00:09:12] Speaker 01:
I was not interviewed for it.

[00:09:14] Speaker 01:
I was put in front of me, and I was asked to sign it, and I did.

[00:09:17] Speaker 03:
Certainly the district court could have disbelieved her based on that conflict and testimony.

[00:09:23] Speaker 01:
Yes, I don't think we're, I think that there's conflicting evidence over who suggested the use of the solid state reaction method.

[00:09:30] Speaker 01:
What I don't think there's conflicting evidence over is that ruling Ming was responsible for taking the... So you concede, you concede that point then, in what you're doing.

[00:09:41] Speaker 01:
I concede that there is... That there is sufficient evidence for the district court to have rolled the way he did.

[00:09:47] Speaker 01:
I don't understand the district court's ruling.

[00:09:52] Speaker 01:
The district court lays out the presentations by both sides and then in the end just says that there's no way to decide whether she's an inventor or not.

[00:10:05] Speaker 05:
What you're saying is we don't have findings that might be helpful here from the district court as to actually what happened.

[00:10:13] Speaker 01:
We do have the finding that she was the only, they're not really findings, they're just recitations of testimony, but we do have a finding that she was the only material scientist that Ming was responsible, that Dr. Chu admitted that Ming was responsible for helping him describe the synthesis process and that the method used in preparing these compounds was critical to the production of a superconductor.

[00:10:42] Speaker 01:
The issue

[00:10:43] Speaker 01:
The issue is, and I think that this court's opinion in Falana is what matters most to Ms.

[00:10:52] Speaker 01:
Ming, and it is that without the work that she did, there would be no superconductors.

[00:11:02] Speaker 01:
While her work may seem standard practice today, when it occurred in 1987, it was not.

[00:11:10] Speaker 05:
Well, that would be pretty interesting if there were testimony to that effect, but I don't see the testimony that says in 1987 this was something other than routine.

[00:11:27] Speaker 01:
I can, Dr. Forrester said that in his testimony, and Ruling Ming said it in her testimony.

[00:11:36] Speaker 01:
I realize she can't corroborate her own.

[00:11:39] Speaker 05:
I didn't see where she said that in her testimony.

[00:11:42] Speaker 05:
Where did she say that?

[00:11:43] Speaker 01:
I don't.

[00:11:50] Speaker 01:
I would have to go back and look at it.

[00:11:52] Speaker 06:
Well, maybe if you have time between now and the time we see you again in a few minutes, you'll be able to identify some pages in the appendix that support what you're saying.

[00:12:00] Speaker 06:
Why don't we hear from Mr. Beverly?

[00:12:12] Speaker 04:
May it please the court, I'm Jay Baberlio, I represent Dr. Pei Hearn Hoare.

[00:12:16] Speaker 04:
Obviously, this case involves very complex scientific issues, limited time for discussion here.

[00:12:22] Speaker 04:
So I'm going to focus on the essential corroboration facts which corroborate Dr. Hoare's claim to have invented the magnetic rare earth line of high temperature superconductors.

[00:12:35] Speaker 06:
Can I ask you something?

[00:12:36] Speaker 06:
Just to really, just back to the basics.

[00:12:38] Speaker 06:
Sure.

[00:12:41] Speaker 06:
did the partial replacement, right?

[00:12:44] Speaker 06:
Sometime at the end of February?

[00:12:46] Speaker 04:
That is a matter of incontention.

[00:12:49] Speaker 04:
I think there's conflicting evidence on that point.

[00:12:53] Speaker 06:
Dr. Chu himself... Okay, let's assume that he did the partial work and the dates are something like February 24th.

[00:13:01] Speaker 06:
February 22nd, yes.

[00:13:02] Speaker 06:
Okay.

[00:13:03] Speaker 06:
So then as I read the record, there's all this stuff that was going on

[00:13:08] Speaker 06:
in kind of a two-week period in March.

[00:13:10] Speaker 06:
Correct.

[00:13:10] Speaker 06:
And all these different people, some under Dr. Chu's supervision, doing substitutions of a variety of rare earth elements.

[00:13:20] Speaker 06:
That is correct.

[00:13:20] Speaker 06:
Right.

[00:13:21] Speaker 06:
So even accepting that your client did the Galileo?

[00:13:29] Speaker 04:
Galilean.

[00:13:29] Speaker 06:
Galilean.

[00:13:30] Speaker 06:
I mean, that's the one he's claiming, but I don't understand.

[00:13:32] Speaker 06:
I mean, if Dr. Chu discovered at the same time or a little before,

[00:13:37] Speaker 06:
that there were other substitutions, complete substitutions, of the rear earth element.

[00:13:46] Speaker 06:
Why is Dr. Hoare's subsequent or shortly thereafter discovery of one other worthy of a pat?

[00:13:55] Speaker 04:
First stepping back to the partial substitution of the experiments.

[00:13:59] Speaker 04:
The evidence is very clear, and I think Dr. Chu had to admit this himself, is that you cannot, from a partial substitution,

[00:14:08] Speaker 04:
Well, let me step back even further.

[00:14:09] Speaker 05:
Well, let's assume that for the moment.

[00:14:11] Speaker 05:
Let's assume that the partial substitution is a step on the way to the complete substitution, but it's not enough, and that Dr. Chu's role in the partial substitution doesn't make him the sole inventor of the complete substitution.

[00:14:27] Speaker 05:
The problem is, it seems to me, that there are two possible ways that Dr. Hoare

[00:14:36] Speaker 05:
could be an inventor here.

[00:14:38] Speaker 05:
One would be that he came up with the idea of the complete substitution.

[00:14:44] Speaker 05:
The second one would be is that he was the one who implemented the testing and saw that it worked and that the complete substitution resulted in the superconductor.

[00:15:00] Speaker 05:
As to the first of those,

[00:15:03] Speaker 05:
There's conflicting testimony between Dr. Chu and Dr. Horst if he first thought up the complete substitution.

[00:15:10] Speaker 05:
And I look at the laboratory notebook of March 7th, which is before Dr. Horst said he thought this up, and that describes the complete substitution.

[00:15:26] Speaker 05:
the laboratory doesn't say who thought of making the complete substitution, but it's before the date on which Hoare said he thought of it.

[00:15:38] Speaker 04:
I don't believe either side claims credit for the March 7th for the listing that you're talking about.

[00:15:44] Speaker 04:
No, but it's inconsistent with your client's testimony.

[00:15:46] Speaker 04:
It's also inconsistent with Dr. Chu's testimony, which is that he moved straight from partial substitution in February

[00:15:54] Speaker 04:
to doing europium and samarium on March 11th or 12th.

[00:16:00] Speaker 04:
When you look at Dr. Chu's prior writings on this subject, his prior writings are very consistent in which they say, in which he says, as far as doing this pair breaking experiment in which you substitute in the magnetic element to break the Cooper pairs that are responsible for superconductivity,

[00:16:22] Speaker 04:
He says that those experiments, those pair-breaking experiments involving the substitution of magnetic rare earth elements occurred only after the chemical structure and the chemical formula for the YBCO123 was known, which was in the March 6th to 8th, depending on which version you actually believed.

[00:16:47] Speaker 04:
At trial, then he testifies that no, I did pair breaking before that, but based on my gadolinium experiment, this small fraction substitution of gadolinium, then I immediately conceived that all of the magnetic rare earths would work.

[00:17:04] Speaker 04:
And then on March 11th or March 12th, I turned to Europium and Sumerium for a complete substitution.

[00:17:10] Speaker 05:
That is belied by his previous writings, though.

[00:17:14] Speaker 05:
that Dr. Chu was the one who conceived of complete substitution of the rare earth metals.

[00:17:24] Speaker 05:
Is there any room if we accept that testimony?

[00:17:27] Speaker 05:
to consider Dr. Hoare to be an inventor?

[00:17:30] Speaker 05:
I think there is, because there are other rare earth elements that I think it's undisputed that Dr. Hoare... No, but my hypothetical was asking to assume that Dr. Chu was the one who thought of the complete substitution of all of the magnetic rare earth metals, and that

[00:17:51] Speaker 05:
I understand the argument is that the simple idea of the substitution isn't enough for the invention because you didn't know it was going to work and it was an unpredictable technology.

[00:18:02] Speaker 05:
What I'm asking you is if that was the case, that we accept that testimony, that he was the one who thought of the complete substitution, can Dr. Hoare be an inventor under that assumption?

[00:18:15] Speaker 04:
I would think so because obviously Dr. Hoare also had that idea at the same time.

[00:18:21] Speaker 04:
I think if you accept Dr. Chu had the idea, the evidence is also clear that Dr. Hoare had the idea.

[00:18:29] Speaker 04:
In fact, Dr. Chu himself credits Dr. Hoare in his more contemporaneous writings.

[00:18:35] Speaker 04:
He credits Dr. Hoare with doing the complete substitution.

[00:18:40] Speaker 03:
When you say in his more contemporaneous writings, I assume that you're referring to the section of your brief where you say Hoare

[00:18:48] Speaker 03:
proved his claim to inventorship by clear and convincing evidence and then your first point is Chu's own writings credited Hoare with creating the magnetic rare earth superconductors and you rely on a letter of reference.

[00:19:02] Speaker 04:
Not only the letter of reference but also articles that an article that Dr. Chu wrote with respect to Dr. Hoare performing the

[00:19:14] Speaker 04:
pair breaking experiments using complete substitution of gadolinium.

[00:19:19] Speaker 04:
So it's also in one of the scientific articles.

[00:19:23] Speaker 04:
And if you also look at the timing of all this, I think that's very important because we have, see I'm into my rebuttal time, but I'm just gonna go ahead.

[00:19:34] Speaker 04:
The timing of this, when you look at when these complete substitution experiments occurred,

[00:19:43] Speaker 04:
and then look at when the scientific paper is published.

[00:19:47] Speaker 04:
March 16th, there's complete agreement that it was prepared on March 16th.

[00:19:55] Speaker 04:
Immediately after, there's a complete lot of evidence regarding the worldwide rush and competition that's going on during this time to create compounds.

[00:20:05] Speaker 04:
There's also the timing of the patent application regarding the magnetic rare earths.

[00:20:11] Speaker 04:
which occurs on March 26, which is more than a month after Dr. Chu claims he invented, conceived of all of the magnetic rare earths.

[00:20:23] Speaker 04:
It was incredible to believe, given the pattern and practice of the timing of his patent applications, that he would have waited a month in order to file a patent application involving an entirely new line of these magnetic rare earth superconductors.

[00:20:41] Speaker 05:
Well, he wouldn't know that it would work until the experiments had been done.

[00:20:46] Speaker 04:
I guess... That didn't stop him from filing the patent for YBCO for an Iterian substitution before he'd ever even created one.

[00:20:53] Speaker 05:
Okay, let me ask you one more question here.

[00:20:57] Speaker 05:
Let's assume that Dr. Chu's testimony is credited that he thought was the first one to think of the complete substitution.

[00:21:06] Speaker 05:
Let's assume that we disbelieve

[00:21:09] Speaker 05:
Dr. Hor's testimony that he thought of it, but that we credit the idea that Hor implemented Chu's idea of the complete substitution.

[00:21:22] Speaker 05:
Would that make Dr. Hor an inventor?

[00:21:26] Speaker 04:
I think under the standards for co-inventorship, for joint inventorship, where you have a collaboration of

[00:21:35] Speaker 04:
Well, first of all, under 35 USC 116, there's no minimum threshold established to be a co-inventor.

[00:21:41] Speaker 05:
Yeah, but let's be specific.

[00:21:45] Speaker 05:
On that hypothetical, is Dr. Hoare a co-inventor?

[00:21:49] Speaker 04:
I think so because I think there is clearly a collaborative effort of people working together

[00:21:54] Speaker 04:
in close proximity, not only.

[00:21:56] Speaker 05:
But what did Dr. Hork contribute at that point that was more than routine?

[00:22:01] Speaker 05:
I've read his testimony.

[00:22:04] Speaker 05:
He says he supervised the experiments, but I don't see any testimony that he did anything that was inventive or more than routine after the idea was formed to make the complete substitution.

[00:22:22] Speaker 04:
Is that fair?

[00:22:23] Speaker 04:
I don't think it's fair because I think Dr. Chu does give Dr. Hoare credit for doing the complete substitution.

[00:22:30] Speaker 03:
Are you abandoning, when you say he gives him credit, are you abandoning that letter of reference?

[00:22:34] Speaker 04:
No, I'm not abandoning the letter of reference.

[00:22:35] Speaker 04:
I think the letter of reference is clearly in the evidence and there was clear testimony from... It is in the evidence.

[00:22:42] Speaker 04:
From the dean, there was testimony from the dean of the college that you do not misrepresent

[00:22:49] Speaker 04:
the facts in a letter of reference for promotion and tenure, that's one of the most important moments in a college professor's life, and you better have the facts correct, and you better not credit that person with something they did not do.

[00:23:05] Speaker 04:
So it's not like a standard letter of reference.

[00:23:08] Speaker 05:
But Chiu himself said he did it and that he didn't lie.

[00:23:11] Speaker 05:
Correct.

[00:23:13] Speaker 05:
But I'm still confused if Chiu

[00:23:17] Speaker 05:
didn't conceive of the idea of the complete substitution.

[00:23:20] Speaker 05:
Let's assume that.

[00:23:21] Speaker 05:
What is it that he did that was an inventive contribution?

[00:23:25] Speaker 04:
Well, he did.

[00:23:26] Speaker 04:
He did direct the making of the compounds.

[00:23:30] Speaker 04:
He did take that.

[00:23:32] Speaker 04:
And if you look at the lab records, you see that there's also the conception that if one of the magnetic rare earths is going to work, then all of the magnetic rare earths will work.

[00:23:46] Speaker 04:
clear evidence of this surge of activity that occurs after the gadolinium, after the complete gadolinium substitution is confirmed, and the evidence is clear that that's on March the 15th.

[00:23:59] Speaker 04:
There's evidence of the surge of activity with all the other magnetic rare earths, neodymium, homeium, erbium, that could go on, but you get the picture.

[00:24:10] Speaker 04:
So I think there is the clear

[00:24:13] Speaker 04:
conception that all the magnetic rehearse will work at that point.

[00:24:17] Speaker 06:
OK, why don't we hear from the other side.

[00:24:19] Speaker 06:
Thank you.

[00:24:21] Speaker 06:
Mr. Hewitt.

[00:24:32] Speaker 00:
May it please the court, Lester Hewitt here for Dr. Chu.

[00:24:39] Speaker 05:
The problem here is the district court really didn't make

[00:24:43] Speaker 05:
findings that would be helpful to us.

[00:24:45] Speaker 05:
This is complicated.

[00:24:47] Speaker 05:
There is some conflicting testimony.

[00:24:50] Speaker 05:
Maybe the testimony isn't quite as conflicting as the district court thought it was.

[00:24:54] Speaker 05:
And we don't have help from the district court in the findings that would be useful to us.

[00:25:02] Speaker 05:
So what are we supposed to do?

[00:25:05] Speaker 00:
Your Honor, I think we would all have looked and hoped that the judge would have been able to make a final call

[00:25:14] Speaker 00:
on each disputed act.

[00:25:18] Speaker 00:
However, I believe because it's a clear and convincing standard, the judge held both of the plaintiffs to a clear and convincing standard.

[00:25:31] Speaker 00:
And where he felt, which was virtually everywhere, that they couldn't meet the clear and convincing standard, he did not give them credit for a finding

[00:25:44] Speaker 00:
which means he accepted Dr. Chu's testimony.

[00:25:50] Speaker 05:
And so the way he wrote... Yeah, but isn't this just a singable conflict here?

[00:25:54] Speaker 05:
I mean, take, for example, the reference letter where Dr. Chu says, I was exaggerating, but I didn't lie.

[00:26:00] Speaker 05:
And when he says, I didn't lie, that seems to suggest that the work that he specifically stated that Dr. Hoare did or had done under his supervision was an accurate statement of what Hoare did.

[00:26:19] Speaker 00:
A couple of things about Dr. Chu.

[00:26:24] Speaker 00:
Dr. Chu wrote letters of recommendation to Hoare.

[00:26:28] Speaker 00:
They're in the record, dating back, for him to get salary increases.

[00:26:34] Speaker 00:
He was Dr. Chu's PhD advisor.

[00:26:39] Speaker 00:
He recommended that Dr. Hoare become the alternate principal investigator.

[00:26:49] Speaker 00:
At a later point, he listed Dr. Hoare first on a couple of papers.

[00:26:56] Speaker 00:
He did, and then of course when he made a lot of his writings, he credited the lab and sometimes he credited Dr. Hoare.

[00:27:07] Speaker 00:
What Dr. Chu never did in any of the papers was credit himself for anything.

[00:27:17] Speaker 00:
He was looking out for the people in his lab.

[00:27:21] Speaker 00:
He was writing from the standpoint of the university.

[00:27:25] Speaker 00:
There's at least a strong inference that he was indeed giving credit to others rather than himself, because none of those papers... Yeah, but he also said he didn't lie about it.

[00:27:37] Speaker 05:
He said he exaggerated, but he didn't lie.

[00:27:39] Speaker 00:
Well, all of these people helped.

[00:27:43] Speaker 00:
I think he feels like, he's not a patent attorney,

[00:27:47] Speaker 00:
He's an inventor, but he doesn't know anything about patents.

[00:27:51] Speaker 00:
That patent application that was filed was his first one.

[00:27:55] Speaker 00:
He's thinking in terms back then of just the overall contributions, I think, that they made in the lab.

[00:28:04] Speaker 00:
He's giving them credit for it.

[00:28:05] Speaker 03:
He gave them a lot of money, too, as I recall.

[00:28:07] Speaker 00:
Yes, sir.

[00:28:08] Speaker 00:
He did.

[00:28:08] Speaker 00:
He gave them a great deal of money.

[00:28:11] Speaker 00:
He's a generous man.

[00:28:13] Speaker 00:
He was generous to them in every way possible.

[00:28:18] Speaker 00:
And now it's being used as evidence against him.

[00:28:21] Speaker 00:
And I don't think it's right.

[00:28:24] Speaker 05:
Wait, if he says something and he says it was an accurate statement, but an exaggeration, I mean, it's fair to say that it should be held against him.

[00:28:34] Speaker 05:
We don't rule in favor of someone just because he's a generous person.

[00:28:38] Speaker 00:
I understand.

[00:28:39] Speaker 00:
And I do appreciate that.

[00:28:40] Speaker 00:
What I'm trying to say is that we have a record of evidence

[00:28:47] Speaker 00:
during the invention period that is very clear as to all of Dr. Chu's very consistent, very high level intellectual analysis as he went through all the steps to get to the point of all the rare earths.

[00:29:06] Speaker 00:
When it came time to do the writings, he wrote all of them very broadly in terms of getting credit

[00:29:15] Speaker 00:
and a lot of credit to Dr. Hoare.

[00:29:19] Speaker 00:
But that's a writing after the fact for Dr. Chu, who is the head of the lab and the sponsor of Dr. Hoare in the dissertation.

[00:29:30] Speaker 00:
So I think what he's saying is he was exaggerating.

[00:29:34] Speaker 00:
He was trying to put his best spin on it.

[00:29:36] Speaker 03:
Well, what you're saying is, I think, that the district court was justified in treating those

[00:29:44] Speaker 03:
that letter of reference as puffery to cite the 1850s English case on contracts that every one of us read our first year of law school.

[00:29:59] Speaker 00:
That's right, sir.

[00:30:00] Speaker 00:
The other thing that I think the court focused on in great detail is analyzing the record of the lab notebooks

[00:30:12] Speaker 00:
and the testimony of the witnesses, and what he found based upon that evidence, which I would call the direct evidence, he found that neither Hoare nor Ming made a clear and convincing case.

[00:30:30] Speaker 00:
This court has pointed out some of those issues today.

[00:30:32] Speaker 00:
For Ming, they're the same issues with respect to Hoare.

[00:30:37] Speaker 00:
Hoare never wrote anything.

[00:30:40] Speaker 00:
Dr. Chu wrote all the papers.

[00:30:43] Speaker 00:
Dr. Horace said he reviewed them.

[00:30:45] Speaker 00:
There's no evidence he ever did that.

[00:30:48] Speaker 00:
One of the papers, incidentally, two of the papers on February 6th, one of them, exhibit 48, had reference to the fact that Chu had filed a patent application.

[00:30:58] Speaker 00:
Dr. Horace said he didn't read the footnotes.

[00:31:01] Speaker 00:
But I am, and I would like to subject, of course, to the court to go through the actual documents of the partial substitution

[00:31:11] Speaker 00:
if we get a chance.

[00:31:15] Speaker 05:
Well, you can do that.

[00:31:16] Speaker 05:
I'm not sure.

[00:31:17] Speaker 05:
Just speaking for myself, I don't think the partial substitution does it.

[00:31:21] Speaker 05:
I don't think that that inevitably leads to the complete substitution.

[00:31:26] Speaker 05:
And in my mind, the complete substitution is a separate invention in that we need to focus on the question of who thought that up, whether there's evidence that

[00:31:40] Speaker 05:
Dr. Hoare participated in that and whether he did anything else that should make him an inventor here.

[00:31:48] Speaker 00:
I can do that.

[00:31:49] Speaker 00:
Let's start with the first complete substitutions.

[00:31:53] Speaker 00:
The first complete substitutions were not, was not gadolinium.

[00:31:58] Speaker 00:
The first complete substitution was europium.

[00:32:03] Speaker 00:
Europium is the second most magnetic of the rare earths.

[00:32:07] Speaker 00:
And that was done by Dr. Chu.

[00:32:11] Speaker 06:
And do you have a date on that?

[00:32:13] Speaker 00:
Yes, ma'am.

[00:32:14] Speaker 00:
And what was the cooperation?

[00:32:16] Speaker 00:
So the partial substitution work was done over February.

[00:32:21] Speaker 00:
Then at the end of February, after that partial substitution work was done, Dr. Hazen called and told Dr. Chu that the substance, the black phase that Dr. Chu was trying to determine

[00:32:41] Speaker 00:
was this 123.

[00:32:44] Speaker 00:
Chu had already done all the partial substitution work in this YBCL214, because he knew it had the black phase, and he believed the black phase was superconducting.

[00:32:58] Speaker 00:
So he didn't want to wait for the 123.

[00:33:00] Speaker 00:
So on February 28, he learned 123.

[00:33:04] Speaker 00:
But he testified it wasn't until March 7 that the lab had 123 available.

[00:33:10] Speaker 00:
so he could do full substitutions.

[00:33:14] Speaker 00:
So on March 7th, Chu has a series of formulas written out on documents A5059-60, also dated March 7th.

[00:33:31] Speaker 00:
Those are a list of complete substitutions.

[00:33:36] Speaker 05:
And Chu testified.

[00:33:37] Speaker 05:
We don't know that that

[00:33:39] Speaker 05:
laboratory entry was the result of Dr. Chu's idea, do we?

[00:33:45] Speaker 00:
Your Honor, I don't think it's going to be anybody else, and here's why.

[00:33:49] Speaker 00:
First of all, we have to keep in mind that Dr. Hoare did not come on the scene until March 15th, perhaps a few days earlier, when he said, let's do gadolinium.

[00:34:04] Speaker 00:
And his reason to do gadolinium was it was the most superconductive.

[00:34:09] Speaker 00:
But that's exactly what Hoare did, excuse me, Dr. Chu did, in the partial substitution.

[00:34:15] Speaker 00:
He did gadolinium.

[00:34:17] Speaker 00:
So when the 1, 2, 3 became available as of March 7th, those formulas were written and on March 11th.

[00:34:25] Speaker 05:
Yeah, but you're not really responding to my question.

[00:34:28] Speaker 05:
I'm very familiar with the March 7th entry.

[00:34:32] Speaker 00:
OK, I'm getting there.

[00:34:33] Speaker 05:
It does show complete substitution.

[00:34:35] Speaker 05:
Right.

[00:34:35] Speaker 05:
The question is, who's responsible for that entry?

[00:34:39] Speaker 00:
Well, of course, we don't know for sure because Ru Lingming wrote it, Dr. Chu claimed it.

[00:34:45] Speaker 00:
There's nothing written about Dr. Chu on there.

[00:34:48] Speaker 00:
If you go to finish the complete substitution point, I need to make.

[00:34:53] Speaker 00:
The second and third most magnetic rare earths after gadolinium was europium and samarium.

[00:35:05] Speaker 00:
And Dr. Chu turned to having those two

[00:35:09] Speaker 00:
complete substitutions made, and those tests were listed on the March 7th work I just referred to, and those were tested on a series of dates beginning March 11th.

[00:35:23] Speaker 05:
Right, and as I understand it, Dr. Hoare is not claiming to be a co-inventor with respect to the Europium and Sumerian.

[00:35:32] Speaker 00:
You're exactly correct.

[00:35:33] Speaker 00:
He's not.

[00:35:34] Speaker 00:
Ming, Mr. Beverly, tried to get Mrs. Ming to claim them.

[00:35:40] Speaker 00:
Mrs. Ming, there's no evidence that she ever put together any compound.

[00:35:44] Speaker 00:
She was on the material side side.

[00:35:46] Speaker 00:
So it didn't fit at all.

[00:35:52] Speaker 00:
The court found, in essence, in a finding that the work of Europium and Sumerium undercut Dr. Hoare.

[00:36:03] Speaker 00:
And the reason the court found that was Dr. Hoare didn't enter the picture until March 15.

[00:36:10] Speaker 00:
And this work, complete substitution work, was done first.

[00:36:14] Speaker 06:
Let me ask you.

[00:36:15] Speaker 06:
I'm getting a little confused here.

[00:36:16] Speaker 06:
Sure.

[00:36:16] Speaker 06:
We're just talking about complete substitution.

[00:36:19] Speaker 06:
So if we accept, I think what you're saying is we can credit Dr. Chu with complete substitution of these other things.

[00:36:28] Speaker 06:
Yes, ma'am.

[00:36:29] Speaker 06:
But what about gadolinium?

[00:36:31] Speaker 06:
And even if that's true, if it parses out that we credit him for the other others,

[00:36:38] Speaker 06:
but have to or feel that the record supports crediting Dr. Hoare with gadolinium, does that make him some sort of co-inventor?

[00:36:47] Speaker 06:
Absolutely not.

[00:36:48] Speaker 06:
Why not?

[00:36:48] Speaker 00:
I'll tell you why.

[00:36:51] Speaker 00:
Dr. Chu started his partial substitution work with gadolinium because it's the most super magnetic of the rare earth.

[00:37:02] Speaker 00:
And his point and thinking was

[00:37:05] Speaker 00:
If gadolinium worked in the partial substitution, then all of the rare earths would work.

[00:37:12] Speaker 05:
Well, but let's assume that that's not enough, okay?

[00:37:15] Speaker 05:
Because there's something, it's much more significant to make the complete substitution.

[00:37:23] Speaker 05:
It doesn't follow automatically from the partial substitution.

[00:37:26] Speaker 05:
Let's assume that.

[00:37:28] Speaker 05:
And so focus on

[00:37:30] Speaker 05:
the question of whether Dr. Chu was solely responsible for the complete substitution of gadolinium, for example.

[00:37:40] Speaker 00:
All right.

[00:37:40] Speaker 00:
Well, first of all, I think the record supports the partial substitution work being the gateway to all the complete substitution work.

[00:37:51] Speaker 00:
But understanding your point.

[00:37:52] Speaker 00:
But perhaps not enough.

[00:37:53] Speaker 00:
But understanding your point, if you were going to start out

[00:37:57] Speaker 00:
and do the complete substitutions, you might do gadolinium first.

[00:38:03] Speaker 00:
And that's what Dr. Hoare did.

[00:38:05] Speaker 00:
However, Dr. Chu, with his background and his belief that gadolinium had already been tested, he turned and did complete substitutions on the second and most, the two most magnetic rare earth elements, which are europium and samarium.

[00:38:23] Speaker 06:
So is it your view and is there anything in the record to support

[00:38:26] Speaker 06:
that if we credit Dr. Chu with those two that you've discussed, that it would have been known, one skilled in the art, if those two worked, then certainly Gadolinium, including the work done on partial substitution, would work as well.

[00:38:42] Speaker 06:
So that there was, as your position, that there was nothing inventive about Dr. Hoare's work with Gadolinium, given what Dr. Chu had done with the other rear earth elements.

[00:38:52] Speaker 00:
Well, that's exactly right.

[00:38:54] Speaker 06:
Where is it in the record?

[00:38:57] Speaker 00:
Well, Dr. Chu testified to that.

[00:38:59] Speaker 00:
He testified that once he decided that gadolinium would work, then he decided that all the other rare earths, and so he said in his testimony, because he believed gadolinium would work, he moved on to europium, the second most magnetic, and then to samarium, the third most magnetic,

[00:39:22] Speaker 00:
And it's like a series of dominoes.

[00:39:24] Speaker 05:
So are you conceding that the testimony showed that Dr. Hoare was the first one to think of substituting gadolinium, the complete substitution of gadolinium?

[00:39:36] Speaker 00:
No.

[00:39:36] Speaker 00:
And I'll tell you why.

[00:39:38] Speaker 00:
Because Dr. Hoare claimed he did that.

[00:39:43] Speaker 00:
But Dr. Chu also testified that he did the rest of that work, too.

[00:39:49] Speaker 05:
What do you mean, the rest of that work?

[00:39:50] Speaker 00:
I mean, all the other rare earth.

[00:39:52] Speaker 05:
You know, but I'm just focusing on this one.

[00:39:55] Speaker 05:
And it may be, I understand the argument that the substitution of gadolinium necessarily followed from success with respect to urochium and samarium.

[00:40:07] Speaker 05:
Put that aside.

[00:40:08] Speaker 05:
The question is, do you agree that the record shows that Dr. Hoare was the first one to think to

[00:40:19] Speaker 05:
order the substitution, the complete substitution of gadolinium.

[00:40:24] Speaker 00:
No, I don't.

[00:40:25] Speaker 00:
I don't at all.

[00:40:26] Speaker 05:
You don't?

[00:40:26] Speaker 05:
Okay.

[00:40:27] Speaker 05:
I don't.

[00:40:27] Speaker 05:
Why not?

[00:40:29] Speaker 00:
Well, because I don't think it's corroborated.

[00:40:31] Speaker 00:
The only person that mentioned anything that said that Dr. Horr suggested the gadolinium was Mrs. Mane.

[00:40:38] Speaker 00:
And the court found that Mrs. Mane was such an interested party, and she totally is, and is, and the record's full of that, is that she couldn't support that.

[00:40:47] Speaker 00:
Dr. Chu said

[00:40:49] Speaker 00:
He came back after European Sumerian, and he did gadolinium, and he did all the rare earths.

[00:40:55] Speaker 05:
The point is... But Dr. Chu did not testify that he was the first one to think of substituting, doing the complete substitution of gadolinium?

[00:41:05] Speaker 00:
Dr. Chu testified that he was satisfied.

[00:41:09] Speaker 05:
No, no, no.

[00:41:09] Speaker 05:
But answer my question.

[00:41:11] Speaker 05:
Did Dr. Chu testify that he was the one who thought of the complete substitution of gadolinium?

[00:41:19] Speaker 00:
Yes, it's just a matter of putting it in the right order.

[00:41:23] Speaker 00:
He did all of them.

[00:41:24] Speaker 03:
Look, the surge... While you're talking about testimony, I'm sorry to take you out of this, but I just want to take you back to those March 7 lab notes.

[00:41:36] Speaker 03:
You said there was nothing to demonstrate that those were his notes, but wasn't there testimony by him about that?

[00:41:47] Speaker 00:
Oh, yes, absolutely.

[00:41:49] Speaker 00:
They were the testimony by Dr. Chu on the March 7th formulas.

[00:41:58] Speaker 03:
I thought I'd seen it.

[00:42:01] Speaker 00:
It's at A 4144.

[00:42:02] Speaker 00:
4144?

[00:42:03] Speaker 00:
Yes, sir.

[00:42:06] Speaker 00:
Then with respect to europium, I'll just give you the numbers A 5703, 5702, samarium, 5, 6,

[00:42:19] Speaker 00:
with respect to gadolinium.

[00:42:27] Speaker 00:
Dr. Chu asked the lab to test gadolinium and he testified to that at A4151.

[00:42:33] Speaker 03:
This is complete substitution?

[00:42:39] Speaker 00:
Yes, sir.

[00:42:40] Speaker 00:
He had already done the second and the third.

[00:42:43] Speaker 00:
What Dr. Hork

[00:42:49] Speaker 00:
concluded after he had supposedly dedicated catalenium was that they all would follow.

[00:42:56] Speaker 00:
That conclusion was made by Dr. Chu earlier based upon his partial substitution.

[00:43:03] Speaker 00:
Dr. Chu testified that that partial substitution work was a standard practice.

[00:43:11] Speaker 00:
And he drew scientific inferences from that.

[00:43:15] Speaker 00:
And when the 123 became available,

[00:43:20] Speaker 00:
He then began complete substitution.

[00:43:23] Speaker 03:
In essence, you're saying, and he seems to be saying, that if I knew that if the second and third would work, then the most magnetic would work.

[00:43:34] Speaker 00:
He did.

[00:43:34] Speaker 00:
Plus, he knew that based upon his partial of gadolinium.

[00:43:37] Speaker 00:
That's right.

[00:43:38] Speaker 05:
But did he take credit for ordering the partial, the complete substitution of gadolinium?

[00:43:45] Speaker 05:
Did he say that?

[00:43:48] Speaker 00:
A4151.

[00:43:51] Speaker 00:
Yes sir, that's the note I have.

[00:43:54] Speaker 00:
We refer to it in the Chu brief at 20.

[00:44:01] Speaker 00:
So what Dr. Chu... Where does he say that?

[00:44:04] Speaker 00:
I'm sorry, that's just the note I have.

[00:44:20] Speaker 05:
I don't see where he says he thought of substituting the complete substitution of gadolinium, or that he ordered it.

[00:44:29] Speaker 00:
Well, okay, I'm sorry if my page number's wrong.

[00:44:34] Speaker 00:
I don't have another page number here on the gadolinium.

[00:44:40] Speaker 00:
I have several other pages for the test, but I don't have another page number for June.

[00:44:47] Speaker 00:
We can check that,

[00:44:48] Speaker 00:
and give it to you.

[00:44:53] Speaker 03:
What I'm trying to emphasize... Well, I assume you're talking about where the question, or did Dr. Hoare have that test made?

[00:45:03] Speaker 03:
And he answers, because this whole series was made by, proposed by me, and then tests were made.

[00:45:09] Speaker 03:
And I assume that's talking about the complete substitution since talking about Dr. Hoare, but that's all I can get out of

[00:45:19] Speaker 00:
Dr. Chu testified that he looked at this in two steps.

[00:45:27] Speaker 00:
The partials were the predecessor to the completes.

[00:45:32] Speaker 00:
Once he felt the partial on gadolinium worked, he said he knew the complete would work.

[00:45:39] Speaker 00:
So he didn't start with gadolinium, because it's the most magnetic, because he was convinced his gadolinium test would work.

[00:45:46] Speaker 03:
Where does he say that in the record?

[00:45:49] Speaker 03:
that I started what I had synopsized for you before, that I started with the second and third because I knew if they worked, the first would work.

[00:45:58] Speaker 00:
No, he didn't say that.

[00:46:00] Speaker 00:
He just said he knew the first and the second would be the next two to test because he felt he had already tested the gadolinium.

[00:46:11] Speaker 00:
What he said was his testimony is found at A3976 where he refers to going to

[00:46:19] Speaker 00:
the second-most magnetic on Earth.

[00:46:27] Speaker 00:
So, as I read all the testimony in the case and understood Dr. Chu, his partial substitution work opened the doors to the complete substitution.

[00:46:40] Speaker 03:
And that is where he says it on 3976, including complete substitution.

[00:46:46] Speaker 00:
And he therefore

[00:46:49] Speaker 00:
was so confident that gadolinium would work, he went ahead and did the first two in europium and samarium, and then they did the others.

[00:46:57] Speaker 00:
And it wasn't a surge, incidentally, by Dr. Hoare.

[00:47:01] Speaker 00:
Dr. Chu was speaking at Harvard on March 16, and he was trying to get all this work done as he testified so he could put it on a transparency to disclose to the world these new rendering substitutions.

[00:47:16] Speaker 00:
So from the standpoint

[00:47:18] Speaker 00:
Dr. Chu as the physicist and as the researcher here, I believe his testimony is very clear that he was convinced that he went through this in a proper order and that he did indeed have complete substitution in mind because he did the aerobium and samarium.

[00:47:40] Speaker 05:
Well, having it in mind in telling people to make a substitution are not necessarily the same thing.

[00:47:48] Speaker 00:
If he had it in mind, and there's a written record, he had all of them in mind.

[00:47:54] Speaker 05:
Yeah, but having it in mind, he didn't know that it was going to work.

[00:47:59] Speaker 05:
This is a complex technology.

[00:48:03] Speaker 05:
I don't think that the conception likely would complete until it was actually done.

[00:48:11] Speaker 05:
And if he thought up the substitution of gallinium and ordered that it be done and it worked and he was aware of it, that's probably enough to make him the sole inventor if nobody else made a significant contribution.

[00:48:27] Speaker 00:
Dr. Hoare, excuse me, I believe that if the 123 had been available at the time when Dr. Chu started his work in February, he would have done

[00:48:41] Speaker 00:
catalenium with a complete substitution.

[00:48:43] Speaker 00:
But he didn't have one, two, three.

[00:48:45] Speaker 00:
He did what he could to set the stage for the next round.

[00:48:50] Speaker 00:
What I'm saying is that in his scientific mind... But not in his mind.

[00:48:55] Speaker 05:
Where did he say, make the catalenium substitution?

[00:49:01] Speaker 00:
Well, Your Honor, I thought it was there.

[00:49:03] Speaker 00:
I know it.

[00:49:03] Speaker 00:
I know he did say it.

[00:49:05] Speaker 00:
I'll have to get it.

[00:49:06] Speaker 00:
I just have to get the site for you.

[00:49:07] Speaker 00:
I don't have it.

[00:49:11] Speaker 00:
Partial substitution tests that were run on gadolinium have numbers A4300.

[00:49:19] Speaker 03:
Just in the interest of clarity, I think your associate or partner wants to hand you a page.

[00:49:29] Speaker 03:
Because I'd like to know a definitive answer.

[00:49:32] Speaker 00:
It must be my handwriting.

[00:49:33] Speaker 00:
It's on A4151.

[00:49:52] Speaker 00:
Perhaps I'm going to spoke, did I say 4131 before?

[00:49:55] Speaker 03:
No, I thought you said 4151.

[00:50:01] Speaker 03:
This whole series was made by, yeah.

[00:50:06] Speaker 03:
You didn't say that before.

[00:50:24] Speaker 05:
You're relying on because this whole series was made by proposed by me and then tests were made.

[00:50:34] Speaker 06:
And he says you, it was time to run all the rear earths.

[00:50:39] Speaker 06:
So you're saying that was covered.

[00:50:55] Speaker 00:
Now, if you look at March 7, the day Dr. Chu testified was the day 123 became available.

[00:51:05] Speaker 00:
These are the page numbers A5059-A5060.

[00:51:14] Speaker 00:
The number one formula was for europium.

[00:51:18] Speaker 00:
Sumerium was the third one down.

[00:51:20] Speaker 00:
On the second page, number five was the formula for gadolinium.

[00:51:25] Speaker 00:
One, two, three, complete substitution.

[00:51:28] Speaker 00:
This is Dr. Chu's work.

[00:51:30] Speaker 00:
It's a week before Dr. Moore's.

[00:51:30] Speaker 00:
No, but that's the problem.

[00:51:31] Speaker 05:
We don't know whether it's Dr. Chu's work.

[00:51:33] Speaker 05:
Sir?

[00:51:33] Speaker 05:
There isn't any testimony connecting him to that particular entry.

[00:51:40] Speaker 00:
You're right.

[00:51:41] Speaker 00:
There's not testimony except his own.

[00:51:43] Speaker 05:
No.

[00:51:44] Speaker 05:
He himself didn't testify that he was responsible for that entry in the lab notebooks.

[00:51:50] Speaker 00:
Actually, I thought he did refer.

[00:51:51] Speaker 00:
Well, tell me where.

[00:51:54] Speaker 05:
I didn't find that.

[00:51:56] Speaker 05:
This is a question I asked you before.

[00:51:58] Speaker 00:
The point I can make is that because Europium was listed first, I think it was very clearly that was Dr. Chu's work, because that's where his state of mind was at that moment.

[00:52:18] Speaker 00:
And he proceeded then to the European and so on, and Sumerian, and then he went on with the others.

[00:52:23] Speaker 03:
But you told me you could verify that those were from testimony.

[00:52:29] Speaker 03:
And I thought I had seen it, that that was his work.

[00:52:33] Speaker 03:
So we'd like a record site to it.

[00:52:35] Speaker 00:
His claim to the March 7th?

[00:52:37] Speaker 03:
Yeah, in his testimony.

[00:52:41] Speaker 00:
A 4144.

[00:52:42] Speaker 00:
4144.

[00:52:52] Speaker 05:
We're on the page?

[00:52:54] Speaker 00:
I don't have the page.

[00:53:01] Speaker 05:
He talks about March 7th, but I don't see that he talks about the layoff notebook entries.

[00:53:26] Speaker 05:
And he says, actually, March 7 was already known.

[00:53:29] Speaker 05:
That could be the reference to the 123.

[00:53:31] Speaker 05:
It sounds as though it's a reference to 123.

[00:53:34] Speaker 00:
I think that's probably right.

[00:53:57] Speaker 00:
These pages marked on March 7th that he did testify to fit in a time with the first European test being a few days later on March 11th.

[00:54:23] Speaker 00:
So I feel like if a connection is made

[00:54:28] Speaker 00:
there's a rational connection between this listing of formulas for complete substitution with europium first and the fact that the europium was done by Dr. Chu on March 11th.

[00:54:41] Speaker 05:
Well, it tends to, the lab notebook entries on March 7th, even though there appears to be no testimony in which Dr. Chu said he was responsible for those entries,

[00:54:54] Speaker 05:
The fact that those entries appeared on March 7th does appear to be inconsistent with Dr. Hork's testimony.

[00:55:01] Speaker 05:
They came up with the idea on March 11th.

[00:55:04] Speaker 00:
That's correct.

[00:55:06] Speaker 00:
The earliest entry that we found for Dr. Hork, or that Dr. Hork, I think, claimed, was on A4810, which is a gadolinium 901.

[00:55:21] Speaker 00:
That dates March 12th.

[00:55:23] Speaker 00:
That's after Dr. Chu had done all the partial substitution and done the aeropium and a test had been run.

[00:55:34] Speaker 00:
All of a sudden we have this entry that Dr. Hoare claims, which incidentally he said was a wild idea on March 12th.

[00:55:44] Speaker 00:
I think these people were working very closely in the lab.

[00:55:48] Speaker 00:
I don't know why Dr. Hoare came in and decided to start doing this.

[00:55:53] Speaker 00:
in my mind and my belief that based upon all the science and analysis of Dr. Chu, there's no question that everything he did was leading to the complete substitutions of all the rivers.

[00:56:09] Speaker 00:
And he began with Europium and Sumerium to that end.

[00:56:15] Speaker 00:
And the fact that Europium and Sumerium worked of course spurred him on

[00:56:21] Speaker 00:
to do all the other rare-ers.

[00:56:24] Speaker 00:
So when Dr. Hoare comes in four days later and starts testing rare-ers, he's actually getting on the train that's already left the station.

[00:56:37] Speaker 05:
But is there any testimony that Dr. Chu told Dr. Hoare to make those substitutions?

[00:56:44] Speaker 00:
No.

[00:56:45] Speaker 00:
Dr. Hoare and Dr. Ming

[00:56:52] Speaker 00:
excuse me, Dr. Horne, Dr. Chu, were not collaborative.

[00:56:57] Speaker 00:
That's clear.

[00:57:00] Speaker 00:
Mrs. Ming was the go-between.

[00:57:04] Speaker 00:
She knew this was going on, and Mrs. Ming had a document, if you look at, which is, I just think this is an interesting document because she pulled it together, and she couldn't testify to it, but it's A,

[00:57:22] Speaker 00:
4976.

[00:57:23] Speaker 00:
It's dated March 15, 1987.

[00:57:35] Speaker 00:
And I asked Mrs. Ming about this document because it was clear to me in looking at it that she connected the dots.

[00:57:47] Speaker 00:
The first entry, series of entries there are the GB901, which is the full substitution of gadolinium on March 15.

[00:57:56] Speaker 00:
Underneath that, if you go down to 401 and 402, and the reference over there to 7555 and 8858, those are the temperatures of superconducting in the two partial substitutions done by Chu

[00:58:17] Speaker 00:
and the partial substitutions were written there, the ones that he did.

[00:58:22] Speaker 00:
She pulled that out and put it all on the one page on March 15th because she tied it together as being the material scientist.

[00:58:35] Speaker 00:
She knew what doctrine she was doing.

[00:58:36] Speaker 00:
She could give no testimony to this document except as her handwriting.

[00:58:41] Speaker 06:
We're way beyond our time, so thank you.

[00:58:47] Speaker 06:
Well, we still have one minute each for response unless there are questions.

[00:59:00] Speaker 01:
Thank you for your time today, Your Honors.

[00:59:04] Speaker 01:
You asked me for citations to the Dr. Forster testimony.

[00:59:08] Speaker 01:
I would point you to pages 3461 to 62 and 3478, where he talked about Ms.

[00:59:16] Speaker 01:
Means' care.

[00:59:17] Speaker 01:
contribution to the development of this invention as being non-trivial involving independent expertise and thought and beyond the normal level of others in the lab.

[00:59:30] Speaker 01:
There is, where the patents claim a method for making the, it's our position that where the patents claim a method for making the compound, the chemical compound that the person who's responsible for that

[00:59:46] Speaker 01:
making that compound and creating the method should be credited as an inventor.

[00:59:51] Speaker 01:
The clear and convincing, in fact, the undisputed evidence is that Ms.

[00:59:55] Speaker 01:
Ming was responsible for all of the steps that are described in the patent and therefore made an inventive contribution to the inventions described in the two patents.

[01:00:06] Speaker 01:
Any questions?

[01:00:08] Speaker 01:
Thank you for your time today.

[01:00:20] Speaker 04:
Very briefly in rebuttal, Mr. Hewitt claims that Dr. Hoare did not enter the picture until March the 15th.

[01:00:27] Speaker 04:
The evidence actually shows that he enters the picture with respect to complete substitution, March 11th or 12th.

[01:00:34] Speaker 04:
There's no doubt about that.

[01:00:37] Speaker 04:
With respect to the partial substitutions, there is no evidence.

[01:00:41] Speaker 04:
Mr. Hewitt talks about all these experiments that were done on partial substitution, but there's no evidence of anything other than one possible

[01:00:49] Speaker 04:
partial substitution with gadolinium.

[01:00:51] Speaker 04:
There are tons of formulas that are written in the lab notebook, but there is no evidence whatsoever that any of those other than possibly gadolinium were ever actually created or tested.

[01:01:02] Speaker 04:
So there was not a long line of partial substitution experiments leading to these europium and samarium substitutions.

[01:01:12] Speaker 05:
The problem with those March 7th notes is that they do show a complete substitution using gadolinium.

[01:01:20] Speaker 05:
And that is before, even under your timeline, Dr. Hoare entered the picture.

[01:01:26] Speaker 05:
That's a primary problem.

[01:01:29] Speaker 04:
That is a problem, but there is nobody that is actually claiming credit for that March 7th.

[01:01:34] Speaker 04:
Dr. Chu does not claim credit for that particular lab notebook, and neither did Dr. Hoare.

[01:01:42] Speaker 04:
And the formulas are out there.

[01:01:44] Speaker 04:
It's hard to know what to make with that particular evidence.

[01:01:47] Speaker 04:
But with respect to urobium and samarium, which Dr. Chu does claim, what I think remains a question is, why would you go straight to urobium and samarium without confirming gadolinium first as a complete substitution of gadolinium as a superconductor, which tends to show that

[01:02:11] Speaker 04:
Whoever was doing the europium and samarium experiments, which Ms.

[01:02:15] Speaker 04:
Ming did claim she did, didn't really understand pair breaking, didn't understand magnetic earth, magnetic rare earths, which she said she did not.

[01:02:25] Speaker 04:
She did not know which rare earths were magnetic and which were not.

[01:02:29] Speaker 04:
And she really didn't know anything about pair breaking.

[01:02:32] Speaker 04:
But I think there's certainly an inference there that whoever

[01:02:35] Speaker 04:
did, those europium and samarium substitutions, didn't really understand what they were doing scientifically.

[01:02:43] Speaker 04:
Last point with respect to corroboration of gadolinium, there's not only Ms.

[01:02:47] Speaker 04:
Ming's testimony, but there's also the testimony of Jeff Bechtel, who was a graduate student in the lab, who also confirms that he spoke with Dr. Hoare about gadolinium substitution during this time frame.

[01:03:03] Speaker 03:
So your testimony about Ms.

[01:03:05] Speaker 03:
Meng not understanding can also be read to indicate that Dr. Chu is the person who directed her to do it.

[01:03:15] Speaker 04:
That is a possible inference, I would agree with that.

[01:03:17] Speaker 04:
But I think the more logical inference is that they did not, whoever was doing that, did not understand what was going on.

[01:03:24] Speaker 04:
Thank you for your time.

[01:03:25] Speaker 06:
Thank you.

[01:03:26] Speaker 06:
We thank both counsel and the cases submitted.