[00:00:13] Speaker 01:
Our third case this morning is number 15, 2063, Merck v. Watson Laboratories, Inc., Mr. Maddox.

[00:00:27] Speaker 00:
Good morning.

[00:00:28] Speaker 00:
I'm Stephen Maddox for Appellant Watson Laboratories, Inc., and I've reserved five minutes for rebuttal.

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To jump right in, there are essentially four findings of facts and conclusions of law that

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the district court got wrong, and I'd like to talk for as long as you let me about two concerning the section 5.2 of the CDA.

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The first clearly erroneous finding of fact was that Weider and Merck both understood at the time that none of the facts' offers and acceptances of any of that could possibly mean anything in the fall of 1998 because of

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Section 5.2 of the CDA.

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We're not dealing here with witness credibility.

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We're dealing here with factual impossibility.

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Dr. Bucci, the only witness for Weider, testified that he'd never seen or thought of or considered what Section 5.2 meant until he was shown it by litigation counsel in this case.

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He had no knowledge of it at the time.

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There was no indication.

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He thought it had any bearing on things.

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In fact, he had no knowledge of the September 9th

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offer facts, which had the price terms, quantity delivery, payment terms.

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Indeed, Dr. Martin, who was his counterpart at the time, testified that he knew there was a CDA in place, but he didn't know what was going on here.

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What we fundamentally have here is, what do you, the court, do with a CDA provision that no one at the time seemed to think mattered or affected what was going on?

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What do you do with that now that it's been dug up in litigation?

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And the question is, what's the effect of it?

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We say essentially two things.

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First of all, there's not much you need to do with it because we had a signed written offer, the September 9th facsimile.

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Secondly, we say, look, even if that wasn't enough to comply with

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what was later determined to be this section.

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This is a case where basically designed for the contract law of waiver.

[00:02:54] Speaker 02:
So, I mean, your brief basically talks about this in terms of waiver, but why does it even apply to this separate offer for sale?

[00:03:06] Speaker 02:
It seems to me that that provision covered the joint venture.

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The joint venture was ending.

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This offer to buy things and the offer to sell it wasn't made in furtherance of the joint venture.

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It was seen as an entirely different activity.

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So why didn't you argue that 5.2 just doesn't apply to this transaction at all instead of doing it in terms of waiver?

[00:03:32] Speaker 00:
Absolutely.

[00:03:32] Speaker 02:
First, if I may, we argued that it complied with 5.2 and then that if it didn't... Well, right, but your entire brief assumes that it applies and that it either complied or was waived.

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Sure.

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But it seems like the better argument is that it just doesn't apply at all.

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Well, we made that argument in the district court.

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We made that argument that if you construe it, it doesn't actually apply to this.

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There were a couple things, though, that complicated that.

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First of all,

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The parties still continued to talk about other joint ventures.

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And so they were relying on the confidentiality being maintained for their other discussions.

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A single sale is a joint venture?

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I agree, Your Honor.

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But the CDA was, in fact, still in effect.

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It had not been terminated.

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But the point is, why would any person read 5.2 of the CDA as having anything to do

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with a single sales transaction.

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It refers to such a transaction and that would seem to be a reference to a joint venture transaction such as contemplated by the CDA.

[00:04:45] Speaker 00:
That's absolutely correct.

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The term such transaction from 5.2 is ambiguous.

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We look frankly in ambiguity to the conduct of the parties.

[00:04:54] Speaker 01:
Well, I don't even think it's ambiguous.

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Why is it ambiguous?

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It's talking about the kind of transaction that's contemplated by the CDA.

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I agree, Judge.

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It was rejected at the district court because of the reasons I just described, that it was still in effect.

[00:05:08] Speaker 02:
So you didn't make the argument on appeal?

[00:05:10] Speaker 00:
I did not.

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Have you waived that?

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I would think you would have to say yes.

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So you think we can't decide that 5.2 just doesn't apply?

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I think you can decide that.

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I think I can't argue it.

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It's not in my brief.

[00:05:30] Speaker 01:
Well, the overall issue of whether 5.2 applies here or not is an issue.

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Yes.

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This sub-issue may not have been argued.

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Yes.

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This sub-issue may not have been argued.

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What we argue, as you know, is that, look, it doesn't really matter because what happened after they gave up on their discussions for a joint venture on this product, they had other discussions about other products, is that

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Weeder said, look, we'd like just about two kilograms of this stuff.

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And because it's a small transaction, we'd like to do the simplest thing we can.

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And Merck said, in right and back, okay, here's the simplest way to do this.

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And Merck internally said and wrote, listen, there's no definitive supply agreement in place.

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We have no intention of putting one in place.

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So here's what we do to get this done.

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Merck decided to proceed without a definitive supply agreement, as may be required by 5.2 if it applies.

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Merck in September 9th said, here's how you do it, here's the price, here's the term, here's the quantity, here's the delivery, here's the payment.

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Weeder said, great, we're in, here's our purchase order.

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Merck on September 25th said, and by the way, the fastest way to get delivery of the promised immediate delivery is for you to send it to this subsidiary.

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Weeder said, great.

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And on October 8th, Merck confirmed to Weeder that the two kilogram order had been placed.

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And then Weider sat there in the fall of 1998, not at some point in the future, in the fall of 1998, expecting its immediate delivery.

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That is wavering.

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When you manifest intent not to insist on strict compliance with something, you can't then come back and say, oh yeah, we're out of it because you didn't comply with it.

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It's not a question here of Merck saying, well,

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We didn't object at the time.

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You shouldn't infer from our silence that we did.

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We're affirmatively said, here's how you do it.

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Follow my instructions.

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This is how we're going to do this one-off sale.

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And we'd follow those instructions.

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And we say, you've got an offer for sale.

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I think you've got a sale.

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So that's section 5.2.

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It's not clear how

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central this is or how close this is, there's really no question under your case law and the case law of all the courts dealing with contract that you've got sufficient detail here.

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You've got the terms price, quantity, delivery, payment.

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In fact, in some cases, less than that suffices.

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There seems to be an argument that

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Well, look, in this case, those were not sufficiently detailed because the district court said it's a potentially dangerous drug.

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And so the district court said, actually, while the law seems settled and predictable, that if you've got these basic five terms, if you're dealing with what I'm calling a potentially dangerous drug, by the way, we're talking about a nutritional supplement here, that's folate, folic acid, nothing glamorous.

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I'm going to say it's not sufficiently detailed unless it has liability provisions for toxicology and patent provisions.

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And there's two things wrong with that.

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As a matter of fact, in the September 4th memo, Dr. Martin had said, here's how we're going to do it.

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With the order confirmation, you're going to send them the notice that they take this two kilograms at their own risk of toxicology and patent issues.

[00:09:22] Speaker 00:
I'm sure you've got some standard language like that lying around from when we send samples to people.

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Legally, there's just no precedent for it whatsoever.

[00:09:31] Speaker 01:
So what was the testimony here about industry practice with respect to these other terms?

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Sure.

[00:09:39] Speaker 00:
That would be Dr. Buchholz was the one live witness we got from Merck.

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His testimony was, first of all, we, Merck, never do anything without

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Well, we don't care what Merck does.

[00:09:52] Speaker 01:
That doesn't have anything to do with the party's agreement.

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But one of the witnesses did testify about industry practice as to what terms you had in these agreements.

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Who was that?

[00:10:07] Speaker 01:
That would be Dr. Bookholtz.

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And where did he testify to that?

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If you would look at Appendix 1291 at 1729,

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If you'll give me a moment to turn to that page.

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That's 1291.

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Are you there?

[00:10:32] Speaker 00:
Yeah.

[00:10:33] Speaker 00:
Okay.

[00:10:33] Speaker 00:
And if you look at 729, starting at line 16, he's asked if he's got some working knowledge of industry standard terms.

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And then he goes on to say, you have logical things, safety, liability,

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There are many things.

[00:10:52] Speaker 01:
Well, all he's testified to, right, is that these were terms that were in contracts as a matter of industry practice.

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Right.

[00:11:00] Speaker 01:
He didn't testify that there was an industry practice that you didn't have a contract unless you had these terms.

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That is correct.

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And you can see that illustrated in the very next question on 730.

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Are there other types of transactions that are, it goes on, supply contracts and so forth.

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But fundamentally, his testimony obviously wasn't an extra witness.

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He was a party.

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His testimony didn't go to what is sufficiently detailed enough to be an offer in this industry.

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It went to, well, we have supply agreements that have lots of different terms, including liability and so forth, and he went on to testify that we would never have delivered unless we had a definitive supply agreement in place, which of course is not the same thing as evidence of industry custom.

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I should point out that there's

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We could not find a case where any court ever said that you need more than those five terms that were there.

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And in looking at the Lacks case, which is the one they cite for the proposition that you look to the industry, we should point out, first of all, that the Lacks case didn't involve the question of whether you needed more than these five terms.

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The Lacks case said, listen, and by the way, the Lacks case came at a time of transition.

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It was decided below

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under RCA, and then Group 1 would come along.

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The last case was, listen, you've got a whole bunch of solicitation here, but you don't actually have price, quantity, delivery, payment terms.

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But on remand, since there's been a change in the standard, I suppose you can consider whether there's industry custom that these essential terms, that we use essential terms, are not required in your particular industry.

[00:12:49] Speaker 00:
It was not

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Please go ahead and take a chance to see if you can say that.

[00:12:53] Speaker 00:
In some industries, more should be required to be definite.

[00:12:59] Speaker 01:
You're getting into your rebuttal time.

[00:13:00] Speaker 00:
I see.

[00:13:01] Speaker 00:
I will sit down.

[00:13:02] Speaker 01:
OK.

[00:13:02] Speaker 01:
Thank you, Judge.

[00:13:03] Speaker 01:
Mr. McBride.

[00:13:12] Speaker 03:
May it please the court, I want to start with something that you were addressing at the beginning, which is this idea that is it a transaction, and just note,

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that Watson has waived that argument on appeal.

[00:13:23] Speaker 01:
Well, the court specifically.

[00:13:24] Speaker 01:
Maybe they have, but let's talk about the merits of it.

[00:13:27] Speaker 01:
Because on the face of it, it seems to me somewhat difficult to read 5.2 as having anything to do with an individual sales transaction.

[00:13:36] Speaker 01:
It seems on its face to be directed to the kind of joint venture that was contemplated by the CDA.

[00:13:42] Speaker 03:
Well, I'd say it's directed quite broadly towards all transactions between the parties which were occurring at all different levels.

[00:13:47] Speaker 01:
Why?

[00:13:48] Speaker 01:
Why would you read it that way?

[00:13:49] Speaker 03:
Well, I would say that both Dr. Bucci and Dr. Buchholz testified that they believed that this section of the transaction covered, this section of the CDA covered all transactions and all the discussions.

[00:14:01] Speaker 01:
If it's clear on its face, what do we care what they thought?

[00:14:04] Speaker 03:
Well, I would say it's clear on its face.

[00:14:05] Speaker 03:
It says a transaction.

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And in fact, in the district court's opinion at appendix page 11.

[00:14:10] Speaker 01:
Was it such a transaction?

[00:14:13] Speaker 03:
It was such a transaction, a transaction that was taking place.

[00:14:17] Speaker 01:
Which suggests that it's the kind of transaction that the CDA was directed to.

[00:14:22] Speaker 03:
Well, the CDA doesn't distinguish between a definitive, I'm sorry, with a global supply agreement to cover long-term supply and an individual transaction.

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And these parties, Merck and Weider,

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They were having discussions across an entire panoply of potential problems.

[00:14:39] Speaker 01:
People don't enter into CDAs if they're having individual sales transactions.

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People enter into CDAs only if they are contemplating a large transaction, right?

[00:14:51] Speaker 03:
They enter CDAs when they're engaged in broad-ranging discussions.

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And in that CDA, they're providing themselves with cover in Section 5.2 for any and all transactions coming out of this.

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And in fact, if you look specifically at 5.2, it just says a definitive agreement regarding a transaction.

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And the such a transaction is referring back to that clause where section 5.2 specifically says, and this is at A1371, unless and until such definitive agreement regarding a transaction between Weider and Merck has been signed by both parties, neither party will be under any legal obligation of any kind with respect to such a transaction.

[00:15:33] Speaker 03:
So the such is referring to the transaction, the A transaction noted in the beginning.

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And I want to point out that at page A11, where the district court is ruling that this is a transaction, he does, in fact, point to the fact that Weider, in communicating about this transaction or about these discussions, called it a transaction.

[00:15:53] Speaker 01:
Why isn't the fact that nobody mentioned 5.2 at the time that this individual transaction occurred pretty powerful evidence?

[00:16:02] Speaker 01:
that it didn't have anything to do with the transaction?

[00:16:05] Speaker 03:
Well, I think that would defeat the purpose of 5.2.

[00:16:07] Speaker 03:
I mean, 5.2 operates in the background for all of these discussions.

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For example, when Merck and Weider were proposing the actual global supply agreement for which there was a draft, they were exchanging those drafts and having their meetings and communicating about the terms that they did and didn't agree on.

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They were not constantly invoking 5.2.

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That's the purpose of having 5.2 in the background, is to provide exactly that kind of protection.

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And I want to point out, this is not a small transaction.

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I disagree with that characterization.

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If you look at Dr. Bucci's email at A5001, he notes that two kilograms is 62,500,000 doses of five-methyl tetrahydrofolate.

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And in fact, he says, obviously, we have to find a place to put all of this.

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They didn't even have a plan for what they might possibly do if, in fact, this indication of interest ever actually carried forward

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and was culminated in a definitive agreement signed by both parties.

[00:17:04] Speaker 03:
What Watson's trying to do here, Your Honor, ultimately, is they're trying to get you to retry the case on the facts.

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However they might dress it up as legal error, what they're doing is asking you to substitute your judgment on the facts in a de novo fashion for that of the district court.

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But it's not a de novo appeal.

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It is clear error is the standard.

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And as you said, in King Instrumentals Corporation, if the district court's account of the evidence is plausible, that's not clear error.

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And I would say that in this case, when the district court found that the CDA and 5.2 were in effect in September of 1998, covering this transaction in question, the protections were not intentionally relinquished, the requirements of 5.2 were not met by the September 9 facts, and that that same facts lacked important material and history-setting terms.

[00:17:52] Speaker 01:
The offering facts was signed, wasn't it?

[00:17:55] Speaker 03:
The communication of the September 9 facts was signed by Merck, correct.

[00:17:59] Speaker 03:
Yeah.

[00:18:00] Speaker 03:
So?

[00:18:01] Speaker 03:
But it says definitive agreement signed by both parties.

[00:18:04] Speaker 03:
And if you want to apply group one and say it has to be an offer capable.

[00:18:07] Speaker 01:
It wouldn't count if somebody responded with a signed purchase order?

[00:18:13] Speaker 03:
No, Your Honor.

[00:18:13] Speaker 03:
I don't believe it would.

[00:18:15] Speaker 03:
In this case, when we're talking about a definitive agreement signed by both parties, we're talking about a formal contract that both parties have signed.

[00:18:22] Speaker 01:
And if we're... So if the other party had said, okay, here's our order and the price is acceptable, here's the quantity and it's signed it, that wouldn't be an agreement signed by both parties?

[00:18:41] Speaker 03:
I don't believe so.

[00:18:42] Speaker 03:
Restatement Second of Contract Section 26, it's not an offer.

[00:18:45] Speaker 03:
if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.

[00:18:56] Speaker 03:
Dr. Martin made clear in his September 9 facts that this purchase order, if it were to be sent, would be subject to confirmation.

[00:19:03] Speaker 03:
So there is a further manifestation of assent required.

[00:19:06] Speaker 03:
So at best, if there were conclusive evidence that a signed purchase order had been sent,

[00:19:11] Speaker 03:
What we would have there is at best maybe an offer to buy requiring a further manifestation of assent on the part of Merck.

[00:19:18] Speaker 03:
But one thing is clear is that given the facts as they are now, we do not have a definitive agreement signed by both parties or capable of being made such a definitive agreement signed by both parties.

[00:19:29] Speaker 02:
What did Merck mean when they said that the order has been placed?

[00:19:33] Speaker 03:
What are you referring to?

[00:19:34] Speaker 03:
They had understood that in fact there was the intent to send a purchase order, but if you look at the subsequent

[00:19:40] Speaker 03:
sites that are in the record, what you see is people are unsure.

[00:19:43] Speaker 03:
They have to potentially find it.

[00:19:45] Speaker 03:
And in fact, if you go to the January 1999 email at A1428, and in fact, what Weider says there, the purchase order, if one exists,

[00:19:59] Speaker 03:
So there's no clear indication.

[00:20:01] Speaker 01:
That's a guy who may or may not have known that there was a purchase order.

[00:20:05] Speaker 03:
Well, the person who was sending that email or was on that chain is Gary Jepson.

[00:20:09] Speaker 03:
He was the counterparty to Dr. Martin, who was, in fact, involved in the communications that Watson claimed from this contract.

[00:20:15] Speaker 01:
Where is there doubt expressed by Merck that there was an order?

[00:20:20] Speaker 03:
Merck does not ever actually say, we don't know if there is an order.

[00:20:23] Speaker 03:
They say we have to look for it.

[00:20:25] Speaker 03:
There is no indication.

[00:20:26] Speaker 01:
But everything they said seemed to assume that there had been.

[00:20:30] Speaker 03:
Well, everything they said indicated they were going to look and see if one exists and where it is.

[00:20:34] Speaker 03:
But what we don't have is any indication of... Well, it's more than that, isn't it?

[00:20:39] Speaker 01:
Aren't there statements by the Merck people that suggest that they assumed there was an order?

[00:20:43] Speaker 03:
There are some statements that they are relaying what that Watson, I'm sorry, what Weider had told them, that they believed Weider had said there was an order.

[00:20:50] Speaker 03:
Could you find it?

[00:20:51] Speaker 03:
But again, I want to point out that, you know, we don't have the burden of persuasion here to show that no purchase order was sent.

[00:20:58] Speaker 03:
We have simply a burden of production, which we have done.

[00:21:02] Speaker 03:
Watson has the burden of persuasion to show by clear and convincing evidence that, in fact, such a purchase order would exist if, in fact, it were relevant.

[00:21:09] Speaker 01:
Well, I don't think so.

[00:21:09] Speaker 01:
I don't think so, because an offer for sale counts on the on-sale bar as well as a contract.

[00:21:17] Speaker 03:
Well, again, I'd go back, Your Honor, to say that even sending the purchase order

[00:21:22] Speaker 03:
would not meet the requirements of Section 5.2 to form in its entirety a definitive agreement signed by both parties, therefore.

[00:21:29] Speaker 02:
Let's set aside 5.2 for the moment.

[00:21:31] Speaker 02:
Let's assume we conclude that 5.2 doesn't apply.

[00:21:35] Speaker 02:
OK.

[00:21:36] Speaker 02:
And that this is just an individual sale not covered by that agreement.

[00:21:40] Speaker 02:
Isn't the terms of the offer that sets forth the price, the quantity, the delivery, and the like, an offer for sale under the own sale bar?

[00:21:49] Speaker 03:
I would say it's not, Your Honor, and the District Court concluded that they were missing material industry standard terms, not just that they were industry standards.

[00:21:57] Speaker 02:
This wouldn't be a contract without those kind of terms.

[00:22:01] Speaker 02:
It may be that it's industry custom to put those terms in to protect both parties, but is there any support that there's no contract for?

[00:22:09] Speaker 03:
Well, Dr. Bucci testified, and this is at A1080, is that having, for example, the toxicological data,

[00:22:15] Speaker 03:
was an important precondition to any agreement.

[00:22:18] Speaker 01:
That's irrelevant.

[00:22:20] Speaker 01:
The UCC doesn't say there's no contract if there are other terms like this.

[00:22:25] Speaker 01:
It talks about price, delivery, quantity, quality as being the essential terms of the contract.

[00:22:32] Speaker 01:
As a matter of general UCC law, the fact that there may be other terms that could be put in doesn't make it not a contract.

[00:22:41] Speaker 03:
Well, I would argue, Your Honor, that the UCC and the cases that Watson's relying upon, these are cases where you have a so-called battle of the forms, where the parties have engaged in repeated conduct of sale.

[00:22:53] Speaker 03:
And the question is now, with no doubt that there is a contract in place in those instances, because both parties have executed, how do we now then fill in the missing terms that were overlooked in the course of that commercial conduct?

[00:23:06] Speaker 01:
Well, that exactly seems to cut against your argument.

[00:23:10] Speaker 01:
Under the UCC, you can fill in the missing terms by industry custom, but in order to have a binding contract, you don't have to have the missing terms included.

[00:23:20] Speaker 03:
Well, there's no instance, Your Honor, in any of the cases that were cited where a third party, 17 years later, came in and tried to create a contract between two parties.

[00:23:29] Speaker 02:
We don't need a contract here, though.

[00:23:31] Speaker 02:
We need an offer for sale.

[00:23:33] Speaker 03:
Right, but there's no instance here where we have somebody... The UCC fills in the material terms when you have

[00:23:40] Speaker 03:
an unambiguous contract, and you need to fill in what's missing.

[00:23:43] Speaker 03:
You don't have an instance where you have promotional activity of the sort you might have seen in linear tech that would, if it were actually executed, result in a sale.

[00:23:52] Speaker 03:
But up to that point, it is not itself a binding commercial offer or a binding sale under 102B.

[00:24:00] Speaker 01:
Let me see if I can clarify this.

[00:24:01] Speaker 01:
Let's put aside 5.2, and let's put aside these missing terms about liability intellectual property rights.

[00:24:09] Speaker 01:
Is there any question but that there's an offer for sale here if we put those aside?

[00:24:17] Speaker 03:
No, Your Honor, because Dr. Martin very clearly conditioned the purchase order on subsequent confirmation.

[00:24:23] Speaker 01:
And that subsequent confirmation is exactly... No, no, no, but that's... An offer for sale is sufficient.

[00:24:29] Speaker 01:
If you put aside 5.2 and what you say are missing terms,

[00:24:33] Speaker 01:
How could this not be an offer for sale?

[00:24:35] Speaker 03:
Because Dr. Martin's facts, independent of 5.2 or any other terms, says that any purchase order in response to that fax would be subject to confirmation.

[00:24:46] Speaker 02:
So you need confirmation to get the contract.

[00:24:49] Speaker 02:
That doesn't mean you need confirmation to make it an offer.

[00:24:51] Speaker 03:
No, I would say under linear tech.

[00:24:52] Speaker 02:
Let me ask you a hypothetical.

[00:24:54] Speaker 02:
Suppose Merck, and I know this doesn't happen, but it has a big schedule.

[00:24:57] Speaker 02:
And it just sends it out as a mailer and says,

[00:25:01] Speaker 02:
Here's our price for all these different drugs.

[00:25:04] Speaker 02:
This drug will offer at $50,000 per kilogram.

[00:25:07] Speaker 02:
This drug will offer at $10,000 per kilogram.

[00:25:10] Speaker 02:
And they published this.

[00:25:11] Speaker 02:
They sent it out in a blast email.

[00:25:13] Speaker 02:
Is that not an offer for sale of all of those drugs?

[00:25:16] Speaker 03:
I don't not necessarily, Your Honor.

[00:25:17] Speaker 03:
I'd say now we're talking about a world like linear tech, where this court said the request or the invitation to send a purchase order is inviting an offer to buy, which has to then be accepted.

[00:25:28] Speaker 03:
Inviting an offer to buy is not an offer to sell on the part of Merck.

[00:25:32] Speaker 02:
So what is that mailer missing?

[00:25:36] Speaker 03:
I'm not entirely sure, Your Honor.

[00:25:39] Speaker 02:
Well, what do you need to make an offer for sale?

[00:25:42] Speaker 02:
I mean, if it has the price and it has the quantity, does it need delivery date?

[00:25:47] Speaker 03:
This court said in Fisher Price, or in fact said in Group 1, we're not going to set out rules or even binding guidance.

[00:25:52] Speaker 01:
It says it looks to the UCC.

[00:25:54] Speaker 01:
And the UCC is explicit.

[00:25:56] Speaker 01:
It says there is a contract for the sale of goods when the evidence shows that the parties have agreed to quantity, quality, price, method of payment, and place of delivery.

[00:26:05] Speaker 01:
And those were in the facts, right?

[00:26:09] Speaker 03:
I'm not sure if all of those were in the facts.

[00:26:12] Speaker 03:
All of those were necessarily in the facts.

[00:26:13] Speaker 03:
But the UCC also says in connection, if we look

[00:26:16] Speaker 03:
to the restatement of contracts, which this court also relies upon and is cited in its 102b jurisprudence, is that if there is a requirement of a further manifestation of assent, it's not an offer.

[00:26:27] Speaker 03:
Dr. Martin clearly said there will be confirmation that further manifestation of assent makes the September 9 facts not an offer, even if you throw out the missing material terms and even if you throw out the fact that section 5.2 came first and unambiguously framed these discussions.

[00:26:44] Speaker 03:
The signatory to the CDA, Section 5.2, Dr. Bucholt said that it required a formal contract signed by both parties, and it was in effect in September of 1998.

[00:26:56] Speaker 01:
That's 5.2.

[00:26:57] Speaker 03:
Which I'm saying because I believe it covers.

[00:26:59] Speaker 01:
Yeah, we're putting aside 5.2.

[00:27:01] Speaker 01:
We're putting aside 5.2 in what you say are the missing terms.

[00:27:04] Speaker 01:
And the question is, do we have an offer for sale?

[00:27:07] Speaker 03:
We do not.

[00:27:07] Speaker 03:
Because of the requirement of a further manifestation of assent on the part of Merck.

[00:27:12] Speaker 03:
Coming from where?

[00:27:13] Speaker 03:
Coming from both Merck

[00:27:15] Speaker 03:
Well, Dr. Martin said that it would be subject to confirmation.

[00:27:18] Speaker 02:
Confirmation of the order, not confirmation of the offer.

[00:27:22] Speaker 03:
Confirmation that they would fill the purchase order.

[00:27:25] Speaker 03:
So it was not an automatic feature.

[00:27:27] Speaker 01:
Where is this language you're talking about?

[00:27:30] Speaker 03:
You mean Dr. Martin's testimony?

[00:27:32] Speaker 01:
Yeah.

[00:27:35] Speaker 03:
Well, Dr. Martin's testimony is around... But it's not in the facts itself, right?

[00:27:41] Speaker 03:
Oh, no.

[00:27:41] Speaker 03:
It is in the facts itself.

[00:27:43] Speaker 03:
Where is it in the facts itself?

[00:27:45] Speaker 03:
The September 9th fax is at A1424.

[00:27:47] Speaker 01:
He says, after receiving your order, you will get official confirmation of the order?

[00:28:04] Speaker 03:
Yes.

[00:28:05] Speaker 03:
And Dr. Martin testified that that was not something that would happen automatically, that it would require that they check.

[00:28:11] Speaker 01:
His testimony is irrelevant.

[00:28:13] Speaker 01:
We're talking about the

[00:28:15] Speaker 01:
the face of the document.

[00:28:16] Speaker 01:
The face of the document doesn't say, there's no offer until you get a confirmation.

[00:28:21] Speaker 01:
It says, here's our offer.

[00:28:24] Speaker 01:
If you order something, we'll send you a confirmation.

[00:28:28] Speaker 03:
And Dr. Martin made clear, and again, remember, Dr. Martin's a German speaker.

[00:28:32] Speaker 01:
Why is, who cares about what Dr. Martin says when we're looking at the face of the document?

[00:28:37] Speaker 03:
Because I think it's important since Dr. Martin is not a native English speaker and he was asked specifically what he meant in sending this fax.

[00:28:44] Speaker 03:
And he was clear, we were not promising that the purchase order would automatically be filled.

[00:28:49] Speaker 03:
It's a requirement of a further manifestation of assent.

[00:28:52] Speaker 03:
The purchase order is, at best, in that instance, an offer to buy.

[00:28:56] Speaker 03:
And we're now in the world of linear tech.

[00:28:58] Speaker 03:
I see I've gone past my time.

[00:28:59] Speaker 03:
Thank you, Mr. McBride.

[00:29:00] Speaker 00:
Thank you, Your Honor.

[00:29:13] Speaker 00:
Mr. Maddox.

[00:29:14] Speaker 00:
two things.

[00:29:15] Speaker 00:
First of all, a question about, there seems now to be a question raised about whether the order was placed.

[00:29:21] Speaker 00:
I would simply refer you to appendix 1455, that's the October 8th email, I'm sorry, the facts from Dr. Buchholz of Merck to Weider, saying there's many things in the facts, but one of them is a first order for two kilograms was placed.

[00:29:38] Speaker 00:
We say that means what it says it means.

[00:29:41] Speaker 00:
The second thing is we've heard a great deal about

[00:29:45] Speaker 00:
What Dr. Martin testifies about his facts is a side-by-side on page 17 of our reply brief that puts what Merck now says it means versus what it actually says.

[00:29:55] Speaker 00:
If you have no further questions, I would sit down.

[00:29:58] Speaker 01:
Okay.

[00:29:58] Speaker 01:
Thank you, Mr. Maddox.

[00:30:00] Speaker 01:
Thank both counsel, the case is submitted.