[00:00:53] Speaker 04: Next case is Zhejiang Medicine versus Kenneka Corporation, 2016, 1390, and 1466. [00:01:01] Speaker 04: Mr. Nowak, is it? [00:01:06] Speaker 04: Nowak. [00:01:08] Speaker 04: Nowak. [00:01:15] Speaker 00: Good morning, Your Honors. [00:01:17] Speaker 00: May it please the Court, I'll begin with the claim construction issue. [00:01:21] Speaker 00: On June 10, 2015, the district court decided, I'm sorry, the Federal Circuit ruled that claim construction in this case that oxidizing must be an active step and cannot mean doing nothing or allowing it to oxidize on its own. [00:01:37] Speaker 00: Now, the district court interpreted that language in a different way. [00:01:41] Speaker 00: And I quote, the district court said, in other words, some amount of oxidation in excess of which occurs naturally from exposure to ambient air [00:01:51] Speaker 00: must be caused by an active step during the manufacturing process. [00:01:56] Speaker 03: Even if that was error, wouldn't it be invited error? [00:01:59] Speaker 03: Because at the status conference after remand, that's exactly what you said to the district court, didn't you? [00:02:06] Speaker 00: At the status conference, Your Honor. [00:02:07] Speaker 00: Yes. [00:02:08] Speaker 00: Yes. [00:02:10] Speaker 00: My opponent has said that my comment on the increase of the activation rate [00:02:16] Speaker 00: What I was referring to, and I can give you the quote. [00:02:19] Speaker 00: I was referring, when I said this is what we, I think my statement was, this is what we decided all along. [00:02:25] Speaker 00: That quote was based on Conica's prior counsel, and I may find the, yeah, on a comment by Conica's prior counsel, and I cite to the court at the appendix 2424, [00:02:45] Speaker 00: During the Texas claim construction, Connick has prior counsel said the increase word was meant to emphasize the difference between passive and the oxidizing agent, which is an active step. [00:02:59] Speaker 00: All I was referring to in that statement is to that statement. [00:03:03] Speaker 00: I certainly didn't say anything that we had to prove a baseline level of oxidation. [00:03:08] Speaker 00: And then on top of that, prove an active level of oxidation, which was greater than the baseline. [00:03:14] Speaker 00: And I would submit to the court, I don't control claim construction in this case. [00:03:20] Speaker 00: You do. [00:03:21] Speaker 00: So my comment was only referring to that previous statement by Konica's prior counsel. [00:03:26] Speaker 00: I wasn't advocating a baseline or that we had to show something in excess of that baseline. [00:03:32] Speaker 00: Now, under the Federal Circuit's claim construction on June 10th, Konica was required to prove that an active step results in oxidation. [00:03:43] Speaker 00: no more, no less. [00:03:45] Speaker 00: Under the district court's construction, we were now required to prove a baseline level of oxidation and then something in excess of that level. [00:03:55] Speaker 03: But what do you view as active? [00:03:58] Speaker 03: I'm sorry? [00:03:59] Speaker 03: I mean, what do you think the concept of an active step means? [00:04:04] Speaker 00: Well, if you look at this active step that Dr. Sherman identified in his expert report, he identified a washing step and a blow drying step. [00:04:12] Speaker 00: That certainly is different than doing nothing or allowing it to oxidize on its own. [00:04:17] Speaker 00: That was the step before extraction. [00:04:20] Speaker 00: He also identified a step after extraction, which was another washing step. [00:04:25] Speaker 00: That, again, was certainly not doing nothing or allowing oxidation to occur on its own. [00:04:31] Speaker 00: I mean, I submit it doesn't take an expert to figure out that that's an active step as opposed to a passive step of doing nothing. [00:04:38] Speaker 04: Dr. Sherman's opinion was not accepted, though, was it? [00:04:41] Speaker 00: No, Dr. Sherman's opinion was not accepted for several reasons, Your Honor. [00:04:46] Speaker 00: First of all, the district court said that Dr. Sherman's report was speculation because he used the word can in paragraphs 119 and 152 of his expert report. [00:04:57] Speaker 00: The district court, however, did not refer to paragraph 159 of Dr. Sherman's expert report, which did not use the word can. [00:05:07] Speaker 00: I have to go to a different tab for this. [00:05:12] Speaker 00: 159 in Dr. Sherman's report said, one of ordinary skill in the art would further understand that oxygen is an effective oxidizing agent and that exposure to oxygen in air and an aqueous solution, which is water, would result in conversion to an oxidized product. [00:05:35] Speaker 00: The district court did not refer to that paragraph in Dr. Sherman's report. [00:05:39] Speaker 00: She only referred to paragraphs 119 and 152, which used the word can. [00:05:45] Speaker 00: I suggest that in paragraph 159, Dr. Sherman said what is actually a scientific fact, actually, what is happening during the Washington and... Wasn't the trial court's reason for excluding Dr. Sherman's report primarily because she thought his report was based on a claim construction that she no longer believed was in play? [00:06:08] Speaker 00: That's the second reason, Your Honor, absolutely. [00:06:10] Speaker 00: So let me address the claim construction issues. [00:06:13] Speaker 00: There's two sets of claim constructions, the 2012 claim construction and the 2014 claim construction. [00:06:19] Speaker 00: The district court rejected the 2000, or Conica's 2000 claim construction and ZMC's 2012 claim construction for the same reason. [00:06:31] Speaker 00: That was based on the unreliability of Conica's claim construction. [00:06:35] Speaker 00: The only argument she cites to reject both sets was the unreliability of Conica's claim construction. [00:06:42] Speaker 00: Now, Dr. Taylor, ZMC's expert, said our data, I'm representing Conica, our data was unreliable because we refrigerated the samples before we did the tests. [00:06:55] Speaker 00: Dr. Taylor, ZMC's expert, said that their data was unreliable because they froze the samples, tested, and when those dead [00:07:05] Speaker 00: sample microorganisms were thawed, they would burst into a metabolism that was greatly increased. [00:07:15] Speaker 00: So our data, I'm not arguing that the court should have relied on our data, because we built a mobile lab, as you see from our brief, to resolve that issue. [00:07:27] Speaker 03: Right, so that issue is not even, even with respect to your evidentiary challenges, the issue of whether [00:07:33] Speaker 03: that data, your data, comes in is not on the table. [00:07:36] Speaker 00: Right. [00:07:36] Speaker 00: It's the ZMC data that's on the table. [00:07:38] Speaker 00: That's correct, Your Honor. [00:07:39] Speaker 00: OK. [00:07:40] Speaker 00: So in terms of Dr. Taylor's reason for excluding that data, it was the thawing issue, right? [00:07:49] Speaker 00: Now, Dr. Sherman in the district court cites his testimony on that issue, says there's absolutely no support for the theory that dead cells will suddenly revive and there will be additional [00:08:03] Speaker 00: activity after their thought. [00:08:06] Speaker 00: That's Dr. Sherman's opinion. [00:08:08] Speaker 00: But the main argument that ZMC makes is that Conica has to prove that there was peer review of that data before it would be reliable and we could use it. [00:08:20] Speaker 00: Putting aside for a moment Dr. Taylor's reason, which is disputed. [00:08:31] Speaker 03: Okay. [00:08:32] Speaker 03: Again, I thought you just told me you weren't challenging that order that said that the refrigerated... I'm talking about two sets of data, Your Honor. [00:08:43] Speaker 03: Okay, the frozen data is theirs. [00:08:45] Speaker 00: Frozen data is EMC's data. [00:08:48] Speaker 00: Refrigerated data is our data. [00:08:50] Speaker 00: Right, and that's not an issue. [00:08:51] Speaker 00: That's not an issue. [00:08:53] Speaker 03: Okay. [00:08:53] Speaker 00: I'm only relying on the EMC data. [00:08:55] Speaker 00: I apologize if I confused it. [00:08:57] Speaker 00: Yeah. [00:08:57] Speaker 00: I'm going too fast. [00:08:59] Speaker 00: I'm only relying on the EMC data. [00:09:01] Speaker 00: The ZMC says it's unreliable because of the thawing issue, which I just stated. [00:09:08] Speaker 00: It also says it's unreliable because we did not show that that method was peer reviewed. [00:09:15] Speaker 00: The thawing method was peer reviewed. [00:09:17] Speaker 00: The freezing and thawing method was peer reviewed. [00:09:21] Speaker 00: Let me address the peer review issue, which is the main issue. [00:09:25] Speaker 00: I refer the court to A14276. [00:09:30] Speaker 00: There is the testimony of Dr. Elkford Sporman, who was the expert for the XKGC and the ITC procedure. [00:09:40] Speaker 00: And he was being cross-examined on the freezing method. [00:09:45] Speaker 00: And let me just read this into the record because it's important. [00:09:49] Speaker 00: What he was talking about is what happens after you take the sample and you decide whether to refrigerate or freeze the cells, he said. [00:09:58] Speaker 00: And he says, what do you do with those cells? [00:10:00] Speaker 00: And the data shows that unless you rapidly freeze the cells, and that's what everybody in the field will ultimately do. [00:10:09] Speaker 00: And he goes on to say, the very best way to stop metabolism is to freeze the cells, and that's basically the standard in the field. [00:10:18] Speaker 00: So let me summarize what I just said. [00:10:21] Speaker 00: First of all, Dr. Taylor's report, or opinion, I should say, [00:10:27] Speaker 00: that there's some metabolism increase after thawing, there's absolutely no support for that at all. [00:10:35] Speaker 00: And he gave none. [00:10:37] Speaker 00: The second reason is that we had to point to peer review of their results. [00:10:42] Speaker 00: That's what I just did. [00:10:44] Speaker 00: Dr. Sporman, who was not even GMT's expert, said that's the best way to stop metabolism is to freeze the cells. [00:10:55] Speaker 00: And that's basically the standard in the field. [00:10:59] Speaker 00: So for that reason, not alone, but for that reason, I suggest, Your Honor, that their data is reliable. [00:11:06] Speaker 00: We should have been able to rely on it. [00:11:08] Speaker 00: Dr. Sherman should have been able to rely on it. [00:11:11] Speaker 00: And the other reason that his report was rejected based on speculation, that was based on the word can. [00:11:19] Speaker 00: And I corrected that with paragraph 159. [00:11:21] Speaker 00: OK, so let me address [00:11:27] Speaker 00: Go to the next issue. [00:11:32] Speaker 04: The time on your watch isn't what matters. [00:11:34] Speaker 00: I'm looking at that, Your Honor. [00:11:35] Speaker 04: But you do have time. [00:11:37] Speaker 00: All right. [00:11:38] Speaker 00: The other issue is whether Dr. Sherman relied on incorrect claim destruction. [00:11:43] Speaker 00: That's the other keystone issue here in this case, right? [00:11:47] Speaker 00: First, let me say that Dr. Sherman read the June 10th decision, discussed it with counsel, and decided that his report [00:11:56] Speaker 00: was in compliance with that decision. [00:11:59] Speaker 00: It certainly wasn't ignoring the June 10th decision. [00:12:06] Speaker 00: So ZMC points to three differences between the June 10th decision and Dr. Sherman's report to argue that he relied on the wrong report. [00:12:15] Speaker 00: So let me address each of those briefly. [00:12:18] Speaker 00: The first was oxidizing cannot be interpreted as doing nothing or to simply allow oxidation to occur on its own. [00:12:26] Speaker 00: familiar language. [00:12:27] Speaker 00: What ZMC was saying is, Dr. Sherman did not point to any active steps. [00:12:34] Speaker 00: As I said before, he pointed to two active steps, washing and drying before extraction and washing after extraction. [00:12:44] Speaker 00: And as I said, it doesn't take an expert to say they're active to certainly not doing nothing. [00:12:48] Speaker 00: But most importantly, ZMC admits that those are active steps. [00:12:53] Speaker 00: And I refer the court to A, [00:12:55] Speaker 00: 1652, lines 24 and 25. [00:12:58] Speaker 04: But are they active oxidizing steps? [00:13:01] Speaker 00: Well, I'm getting to that. [00:13:03] Speaker 00: That's number three, Your Honor. [00:13:05] Speaker 00: They certainly are active steps, and ZMC admits it. [00:13:09] Speaker 00: So there was no reason for him to revise his report based on that reason. [00:13:13] Speaker 00: The second reason was that the active steps must occur in a claimed order, meaning something before extraction, something after extraction. [00:13:21] Speaker 00: Dr. Sherman identified a step before extraction, [00:13:24] Speaker 00: and after extraction, and they were not production steps. [00:13:28] Speaker 00: So certainly there was no reason to revise based on the second reason. [00:13:31] Speaker 04: You wanted to save three minutes. [00:13:33] Speaker 04: You can continue or save that. [00:13:35] Speaker 00: I've got to get your third reason in, Your Honor. [00:13:37] Speaker 00: The third reason is oxidation requires some step that results in oxidation. [00:13:42] Speaker 00: Again, paragraph 159 says it. [00:13:45] Speaker 00: The word canned is not in there. [00:13:47] Speaker 00: And the ZMC data that Dr. Sherman relied on is not unreliable, and that says it. [00:13:53] Speaker 00: which I'll try to explain when I have some additional time. [00:13:56] Speaker 00: In fact, ZMC admits that oxygen causes oxidation. [00:14:01] Speaker 00: Dr. Taylor agrees with that. [00:14:04] Speaker 00: And Judge Malloy, if you look at page, I think it's 416, I believe, page 16 of the decision, Judge Malloy agrees that the data in those two active steps causes oxidation. [00:14:22] Speaker 00: It's in her decision. [00:14:25] Speaker 00: So with that, I'll save my remaining two minutes. [00:14:27] Speaker 04: We will save it for you. [00:14:29] Speaker 04: Mr. Rosenfeld. [00:14:35] Speaker 01: Good morning, Your Honor. [00:14:36] Speaker 01: May it please the Court. [00:14:39] Speaker 01: This case is about causation. [00:14:41] Speaker 01: The Federal Circuit, in the Kingdom Way decision, decided that oxidation requires an active step that results in oxidation. [00:14:52] Speaker 01: The reason that the court correctly granted summary judgment is that Conica has not put forward any evidence, zero evidence of causation. [00:15:00] Speaker 02: There is no evidence that anything- Well, they put forward that there's a washing step prior to extraction and a drying step. [00:15:08] Speaker 02: And then the ZMC data, which measures oxidation, shows that after the [00:15:16] Speaker 02: post fermentation washing step, the ratio of reduced COQ10 to oxidized COQ10 went from 81 to 26.9. [00:15:24] Speaker 02: That was the first study. [00:15:25] Speaker 02: In the second study from 88 to 55, under either study, that definitely shows a reduction in oxidation. [00:15:33] Speaker 02: I don't know whether or not that's more than or less than what would occur in a passive state, but isn't that a question of fact for a jury? [00:15:42] Speaker 02: They've definitely demonstrated that oxidation has occurred as a [00:15:46] Speaker 02: at directly after the washing step, that there is a significant input from your data. [00:15:52] Speaker 02: So why isn't that enough to survive summary judgment? [00:15:55] Speaker 01: Because there's absolutely nothing that tells us why that oxidation is happening. [00:15:59] Speaker 01: When you look at that data, you see oxidation happening throughout the process, not just in the drying step, not just in the washing step. [00:16:06] Speaker 01: It happens throughout the process when you look at those tables. [00:16:08] Speaker 02: Well, while that's true, it happens throughout the process. [00:16:12] Speaker 02: It's a really significant jump based on the evidence in your first study. [00:16:16] Speaker 02: from 81% to 26% just during the washing phase, and you don't see a similar percentage jump during any other phase of the process. [00:16:25] Speaker 02: So why, I mean, is this a fact question? [00:16:28] Speaker 02: Why should I be deciding whether that, the most significant jump in oxidation in your data directly after the washing step, isn't at least a fact question as to whether the washing step is therefore causing the oxidation? [00:16:42] Speaker 01: The answer is that [00:16:44] Speaker 01: This process takes days and days and days. [00:16:48] Speaker 01: And each one of the steps takes different amounts of time. [00:16:51] Speaker 02: The fact that a great amount of... But isn't that a fact question? [00:16:53] Speaker 02: I'm not an expert. [00:16:55] Speaker 02: Those are active steps. [00:16:57] Speaker 03: Each one of them is an active step. [00:16:58] Speaker 03: Why is that not enough? [00:17:00] Speaker 01: Everything that we do is an active step. [00:17:02] Speaker 01: The question is what's causing oxidation. [00:17:04] Speaker 01: I think I can answer Judge Moore's question with two things. [00:17:07] Speaker 01: Why are we deciding this? [00:17:08] Speaker 01: Why aren't we letting the jury decide this? [00:17:10] Speaker 01: There's two reasons. [00:17:11] Speaker 01: First, the only thing [00:17:14] Speaker 01: that Conica put forward as far as evidence is their expert report. [00:17:19] Speaker 01: The judge in her discretion decided that that expert report has to be thrown out because it used the wrong claim construction. [00:17:25] Speaker 01: That's number one. [00:17:26] Speaker 01: Okay. [00:17:27] Speaker 03: So if we disagree with you on the claim construction, then I have a response to that. [00:17:31] Speaker 02: The background for throwing out the report is gone. [00:17:35] Speaker 01: If you believe that [00:17:36] Speaker 02: But you also said that that's only evidence they put forth. [00:17:38] Speaker 02: That's only evidence in the record. [00:17:40] Speaker 02: The ZMC study is in the record. [00:17:42] Speaker 02: All of that evidence is evidence in the record. [00:17:47] Speaker 02: And that's not thrown out. [00:17:48] Speaker 02: And that shows significant amounts of oxidation occurring during particular steps performed in your process. [00:17:56] Speaker 02: Maybe they didn't need to put on anything affirmative in light of that record evidence. [00:18:01] Speaker 01: All that that evidence shows is that oxidation occurs. [00:18:04] Speaker 01: They were asked, [00:18:05] Speaker 01: specifically by Judge Malloy. [00:18:07] Speaker 01: Judge Malloy said, how are you going to prove active oxidation? [00:18:10] Speaker 01: And counsel said, I'm going to have Dr. Sherman put in what's in his report. [00:18:13] Speaker 01: And she said, well, what if I exclude Dr. Sherman's report? [00:18:16] Speaker 01: What are you going to do then? [00:18:18] Speaker 01: And this is what counsel said. [00:18:20] Speaker 01: That's a problem. [00:18:22] Speaker 01: We can't rely on the other evidence. [00:18:24] Speaker 01: That doesn't work. [00:18:25] Speaker 01: Dr. Sherman has to describe these steps. [00:18:27] Speaker 01: What that was, was a clear admission that they have no other evidence in the record. [00:18:31] Speaker 02: That's not an admission they have no other evidence. [00:18:33] Speaker 02: They're trying to persuade her not to exclude it because it leaves them without an expert when you've got an expert. [00:18:39] Speaker 02: But the record contains evidence. [00:18:42] Speaker 02: I really don't see how I can decide this fact question. [00:18:47] Speaker 02: The nature of the fact question is they've shown you've admitted washing is an active step. [00:18:51] Speaker 02: It occurs. [00:18:52] Speaker 02: You all presented a study that shows at least one study during that washing step. [00:18:58] Speaker 02: There's this significant amount of oxidation that has occurred. [00:19:01] Speaker 02: Granted, it varied from the first study to the second study, but that's all fact nonsense. [00:19:05] Speaker 02: That's not for me to work out. [00:19:06] Speaker 02: I'm no expert and maybe it's not the result of oxidation, but you can then demonstrate that since it's your study. [00:19:13] Speaker 02: You can respond to that evidence at a trial. [00:19:16] Speaker 01: So the problem is that there is zero evidence about why that oxidation is happening. [00:19:20] Speaker 01: What your question is, if I can answer it. [00:19:22] Speaker 03: Why do we have to have a why? [00:19:24] Speaker 01: Because the Federal Circuit. [00:19:25] Speaker 03: If there's an active step and it occurs, that's all that the claim construction requires. [00:19:31] Speaker 01: No, Your Honor. [00:19:31] Speaker 01: The Federal Circuit, in its decision in Kingdom Way, said that this step requires an active step. [00:19:38] Speaker 01: So you said, isn't that enough? [00:19:39] Speaker 01: No. [00:19:40] Speaker 01: an active step that results in oxidation, as Judge Laurie said, an active oxidation step. [00:19:46] Speaker 03: So if we have an active step that results in oxidation, who cares why it does? [00:19:50] Speaker 01: It doesn't result in oxidation. [00:19:52] Speaker 01: There's no evidence that it results. [00:19:54] Speaker 01: Let me try to explain. [00:19:55] Speaker 01: It's just because it happens at the same time doesn't mean it happens because of. [00:20:01] Speaker 02: One thing that I think may or may not be clear throughout this entire... I mean, it at least creates a genuine question of fact as to whether it happens because of. [00:20:09] Speaker 02: You're right, it may not cause it, but the question isn't have they proven it, the question is have they raised a question of fact about whether it's caused. [00:20:17] Speaker 01: Exactly. [00:20:17] Speaker 01: And Your Honor, the only thing that they've done is they've speculated during this entire process, all of this material, this goop, is sitting out in the air. [00:20:26] Speaker 01: It's oxidizing all the time. [00:20:28] Speaker 01: So it sits out for five or six or seven days and there's substantial oxidation. [00:20:32] Speaker 01: Sure, the question is why. [00:20:34] Speaker 01: Is that the result of something that we have done? [00:20:36] Speaker 02: But you can make those arguments to the jury, because those are exactly what the jury should decide. [00:20:41] Speaker 01: Sure. [00:20:41] Speaker 02: Those kinds of facts. [00:20:42] Speaker 01: The jury should decide it. [00:20:43] Speaker 01: But they should have evidence to decide it on. [00:20:45] Speaker 01: They shouldn't be guessing. [00:20:46] Speaker 01: The Supreme Court in 1986 said, in order to defeat a summary judgment motion, you have to put evidence forward. [00:20:54] Speaker 03: But there's no dispute that the washing and the drying would cause oxidation. [00:21:01] Speaker 01: There's certainly a dispute about that. [00:21:03] Speaker 01: There's absolutely a dispute about whether it actually causes oxidation. [00:21:07] Speaker 01: The only evidence in the record, our engineers said it, their experts said it, is that those things, since they contain oxygen, could theoretically cause oxidation. [00:21:17] Speaker 01: What we know for sure is that throughout the entire process it's exposed to ambient air which has oxygen in it. [00:21:24] Speaker 01: That is certainly causing oxidation. [00:21:25] Speaker 01: What we don't know [00:21:26] Speaker 01: is whether these other things are causing oxidation. [00:21:29] Speaker 01: This is a very, very complex chemical reaction. [00:21:31] Speaker 01: When you look at what happens... You need to argue this to the jury. [00:21:34] Speaker 01: But the problem is the jury then has to guess. [00:21:36] Speaker 01: Here's what the jury's being asked to answer. [00:21:37] Speaker 02: The jury doesn't have to guess. [00:21:38] Speaker 02: Because you're a smart guy. [00:21:40] Speaker 02: You're going to put on evidence. [00:21:40] Speaker 02: You're going to have an expert that's going to stand in front of them and explain to them exactly how the process works. [00:21:45] Speaker 02: My guess, yeah, you're the smart guy I'm referring to. [00:21:47] Speaker 02: Don't keep pointing at yourself. [00:21:48] Speaker 02: So you're also going to put on some evidence that shows if nothing was done for seven days and it sat in the open air, it would oxidize from this percent to this percent. [00:21:58] Speaker 02: So obviously, it's not the washing step that's doing it. [00:22:01] Speaker 02: I mean, you know, this is easy. [00:22:03] Speaker 02: This is easy for you to offer, for them to offer, and the jury will figure out whether or not it's the washing step that does it. [00:22:09] Speaker 02: We don't have enough information to make that call. [00:22:11] Speaker 01: The problem is, Your Honor, they don't have any evidence. [00:22:13] Speaker 01: They don't even have an expert. [00:22:15] Speaker 01: When you look at the record, the expert does not even say, I think that part of these steps, I think that washing and drying actually is causing... Is discovery closed on the case? [00:22:25] Speaker 01: Yes, it is. [00:22:26] Speaker 01: Yes. [00:22:27] Speaker 01: And they had every opportunity to supplement their report. [00:22:29] Speaker 01: They were asked whether they want to. [00:22:30] Speaker 01: They said, we don't need to. [00:22:31] Speaker 03: Well, he does point to those as the active steps that cause oxidation, doesn't he? [00:22:35] Speaker 01: No, Your Honor. [00:22:35] Speaker 01: He points to those steps as active steps. [00:22:37] Speaker 01: He doesn't use the word active, but he says, these are things that they do. [00:22:40] Speaker 01: And when you look, I have to address paragraph 159, which is now what they've pointed out. [00:22:45] Speaker 01: They said, oh, he actually does talk about causation. [00:22:47] Speaker 01: Look at paragraph 159. [00:22:49] Speaker 01: They never cited that in their briefs, but put that aside. [00:22:52] Speaker 01: That's dealing with a different limitation in claim 15, which is not an issue in this case. [00:22:56] Speaker 01: That's not claim 22. [00:22:58] Speaker 01: It's not claim 33. [00:22:59] Speaker 01: And it has to do with an oxidization agent. [00:23:01] Speaker 01: Totally different limitation. [00:23:03] Speaker 01: So there's nothing in the two sections that the expert actually addresses claim 22 and 33 that address whether or not these steps cause oxidation. [00:23:14] Speaker 01: There's only three paragraphs in each section. [00:23:16] Speaker 01: And in all of them, [00:23:18] Speaker 01: What the expert says is it may cause oxidation, it can cause oxidation, it theoretically could cause oxidation, and we agree, and we also agree, Your Honor, that oxidation occurs. [00:23:28] Speaker 01: But what we don't agree with is that there's any evidence that the jury could rely on to find that oxidation occurs as a result of these steps because there's so much going on in this chemical reaction. [00:23:39] Speaker 01: The jury should be asked this question if they had some evidence before the jury [00:23:45] Speaker 01: that the jury could do anything other than guess. [00:23:47] Speaker 01: Here's what the jury's being asked. [00:23:49] Speaker 01: Look at this complex chemical reaction. [00:23:51] Speaker 01: At the end of it, it's all oxidized. [00:23:53] Speaker 01: Jury, why do you think that happened? [00:23:55] Speaker 02: No, no, no. [00:23:55] Speaker 02: You have a study that actually goes section by section through the process, your study demonstrating how much oxidation occurs at the various stages. [00:24:06] Speaker 02: I mean, during the washing step, you demonstrate that all this oxidation occurs. [00:24:10] Speaker 02: After the drying step, [00:24:12] Speaker 02: You demonstrate the oxidation went from 26.9 to 21.3 in the first study, from 55 to 18 in the second study. [00:24:19] Speaker 02: I mean, you have a study that demonstrates that during each of these phases, oxidation is occurring. [00:24:27] Speaker 01: Correct. [00:24:28] Speaker 01: Correct. [00:24:28] Speaker 01: But post hoc is not ergo proctor hoc. [00:24:32] Speaker 01: In other words, just because oxidation is happening doesn't mean it's happening because of anything we're doing. [00:24:37] Speaker 02: And the jury is free to reach that conclusion. [00:24:39] Speaker 01: But there's nothing on which the jury could reach the conclusion either way. [00:24:43] Speaker 03: Because if the jury puts together the fact that there are active steps occurring and that the oxidation changes to such a level. [00:24:52] Speaker 03: after these washing and drying steps, the jury is free to conclude that therefore that quintessential factual question of causation has been established. [00:25:00] Speaker 01: But how can the jury make that conclusion when the only piece of evidence... Some of it's common sense. [00:25:05] Speaker 01: You know what? [00:25:05] Speaker 02: When my kids go into the kitchen and the cookie jar lid is off and the thing is empty and the kid's got cookie all over his face, I'm not positive he ate them. [00:25:14] Speaker 02: I'm not positive he took them out of the cookie jar. [00:25:16] Speaker 02: I'm not even positive he could reach the cookie jar. [00:25:19] Speaker 02: I feel like a jury could conclude he did based on that. [00:25:21] Speaker 02: There wasn't a smoking gun, but he's covered in cookie. [00:25:24] Speaker 02: Why isn't that kind of like what we have here? [00:25:28] Speaker 02: Not positive. [00:25:29] Speaker 02: Nobody saw for sure the washing step causing oxidation, and maybe there's not a study in this record that demonstrates an equal amount of oxidation would have occurred in ambient air absent no activity. [00:25:40] Speaker 02: Maybe there could even be a study that shows in ambient air with no activity, more oxidation would have occurred than occurred here. [00:25:45] Speaker 02: The water did result in oxidation, but less oxidation that would have occurred because the parts of oxygen in water are less than in ambient air. [00:25:53] Speaker 02: Maybe you could do all that. [00:25:55] Speaker 02: Would it help you, Mr. Rosenthal? [00:25:56] Speaker 02: Maybe we could order the district court to reopen discovery. [00:25:58] Speaker 02: Would that help your case? [00:25:59] Speaker 02: Because then you can put in all those studies that would help establish whether or not the washing step does cause it. [00:26:06] Speaker 02: Since I think that's a question of fact, [00:26:09] Speaker 02: But you don't think it is, so maybe there should be more discovery below. [00:26:13] Speaker 01: So let me answer all three of those points. [00:26:14] Speaker 01: First of all, with respect to your cookie analogy, the situation here is your kids have been eating cookies all day. [00:26:20] Speaker 01: There's crumbs all over them. [00:26:22] Speaker 01: You've seen them eating cookies all day. [00:26:23] Speaker 01: The question is, did they eat cookies out of that jar? [00:26:26] Speaker 01: I don't know. [00:26:27] Speaker 01: I know that they have crumbs, but the jury's being asked, did they come out of that jar or not? [00:26:30] Speaker 02: The jar is empty. [00:26:31] Speaker 01: The jar is empty. [00:26:32] Speaker 01: But you know what? [00:26:33] Speaker 01: They've been eating cookies all day, permissively, all around the house. [00:26:36] Speaker 01: Well, you know what? [00:26:36] Speaker 02: Once again, I'm a bad mommy, because I should have punished them in that situation. [00:26:40] Speaker 02: In that situation, they're punished. [00:26:43] Speaker 01: But my point is this. [00:26:44] Speaker 03: No, but your point is that somehow circumstantial evidence doesn't constitute viable evidence, and it does. [00:26:51] Speaker 03: And the jury is told every single time that a jury is instructed [00:26:55] Speaker 03: that direct evidence and circumstantial evidence are both, in fact, valuable evidence and the law makes no distinction between the two. [00:27:02] Speaker 03: So we cannot discount circumstantial evidence. [00:27:05] Speaker 01: I don't want you to discount circumstantial evidence, but here's the problem. [00:27:09] Speaker 01: The circumstantial evidence could be the result of two different things. [00:27:12] Speaker 01: One of them is certainly happening. [00:27:14] Speaker 01: Passive oxidation is happening throughout this process. [00:27:16] Speaker 01: Everybody agrees. [00:27:17] Speaker 01: Now, we're also doing something. [00:27:19] Speaker 01: And the question is, is what we're doing also causing oxidation? [00:27:22] Speaker 01: And the jury is asked in a vacuum with no help. [00:27:25] Speaker 03: But your own studies show a dramatic increase. [00:27:28] Speaker 01: They show an increase because the process takes a very long time. [00:27:31] Speaker 03: Well, then that's what you tell to the jury. [00:27:32] Speaker 03: They have to decide by preponderance of the evidence on a quintessential fact question, which is causation. [00:27:39] Speaker 01: They have to decide, but they have to decide with some facts that they can rely on, not just guesswork. [00:27:44] Speaker 01: This is chemistry. [00:27:45] Speaker 02: Can't your expert testify? [00:27:46] Speaker 02: He's not excluded. [00:27:48] Speaker 02: Your expert can testify, right? [00:27:49] Speaker 01: Certainly our expert can testify. [00:27:50] Speaker 02: So he can explain to the jury whether he thinks [00:27:53] Speaker 02: this step is resulting in oxidation or not. [00:27:55] Speaker 01: But that's, we don't bear the burden of proof. [00:27:57] Speaker 01: In order to get to a jury, they've got, this is the Supreme Court and Stapletex, they have to put forward some evidence of causation. [00:28:04] Speaker 01: They have zero. [00:28:04] Speaker 02: They have to put forward a question of fact about causation. [00:28:07] Speaker 02: It is a question of fact. [00:28:08] Speaker 02: And your evidence established that for them. [00:28:11] Speaker 01: Well, here's the problem. [00:28:12] Speaker 01: The problem is, what you're saying is there's a lot of oxidation. [00:28:15] Speaker 01: Therefore, can't we assume that that oxidation is the result of this? [00:28:19] Speaker 01: Can't the jury? [00:28:19] Speaker 02: No, wait. [00:28:20] Speaker 02: No, not can we assume. [00:28:21] Speaker 02: Can the jury? [00:28:21] Speaker 02: Is there a question of fact? [00:28:23] Speaker 02: a genuine dispute of fact over whether that oxidation is being caused by that step. [00:28:28] Speaker 04: Mr. Rosenfeld, our lighting system has not been operating correctly, and therefore you have not been made aware that you are in your rebuttal time. [00:28:37] Speaker 04: But we will give you... Oh, you... I see. [00:28:42] Speaker 04: That is why. [00:28:43] Speaker 04: Okay. [00:28:43] Speaker 04: Thank you. [00:28:45] Speaker 04: Excuse me. [00:28:45] Speaker 04: Continue. [00:28:46] Speaker 04: No problem. [00:28:46] Speaker 04: You've got a minute left, so... Thank you, Your Honor. [00:28:49] Speaker 03: So let me ask you about this. [00:28:52] Speaker 03: You argue that none of the court's evidentiary rulings are in any way wrapped up into this proceeding and that we shouldn't address any of those. [00:29:01] Speaker 03: Now, the exclusion of Dr. Sherman's report does expressly relate to the question of oxidation and the question of claim construction. [00:29:10] Speaker 03: Absolutely. [00:29:11] Speaker 03: OK. [00:29:11] Speaker 03: But here's a look. [00:29:14] Speaker 03: So the question about the motion to compel as it relates to your data. [00:29:19] Speaker 03: Yes. [00:29:19] Speaker 03: The trial court in its final judgment in paragraph 5 says, likewise, the party's rights pursuant to federal rule civil procedure 37 in regards to this court's memorandum and order denying defendants motion to compel remain intact. [00:29:39] Speaker 03: What does that mean? [00:29:41] Speaker 01: I think it means that those orders stay in place if the case is remanded, that they're not vacated or voided or mooted. [00:29:48] Speaker 03: See, that's not the way I read that. [00:29:49] Speaker 03: I read that because she's putting it in the same paragraph where the party's rights pursuant to Rule 54 remain intact. [00:29:55] Speaker 03: So it seems to me that she is contemplating that the ability to appeal from that denial remains intact. [00:30:06] Speaker 01: It may be that that's an interpretation you can have. [00:30:09] Speaker 01: It doesn't matter. [00:30:09] Speaker 01: In this case, this is not an abuse of discretion. [00:30:12] Speaker 01: She granted that motion. [00:30:15] Speaker 01: to exclude or did not grant the motion to compel, I should say, on that material. [00:30:19] Speaker 01: I'm sorry, are we talking about the 2014 test results that we allegedly have? [00:30:23] Speaker 01: Is that the one? [00:30:24] Speaker 03: We're talking about the materials that you have. [00:30:25] Speaker 03: And there's a motion for reconsideration that's still pending. [00:30:28] Speaker 03: Well, that's the motion for reconsideration on Dr. Sherman. [00:30:31] Speaker 01: On Dr. Compton. [00:30:33] Speaker 01: But with respect to that issue, she ruled, the court ruled that it was untimely because it was a year and a half late. [00:30:40] Speaker 03: OK, but what I'm trying to understand is is she asking that this be incorporated into this judgment? [00:30:47] Speaker 01: That's not how I read that. [00:30:48] Speaker 01: I read that as that these remain intact for subsequent appeal if there's ever a point at which it were relevant to a final judgment that it would be subject to appeal. [00:30:58] Speaker 01: But in any event, we're happy to handle it on the merits if you think that it should be handled on the merits. [00:31:04] Speaker 01: She ruled that something's untimely and there's no abuse of discretion in that regard. [00:31:07] Speaker 04: OK. [00:31:08] Speaker 04: Thank you, Mr. Rosenthal. [00:31:11] Speaker 04: Thank you. [00:31:11] Speaker 04: Mr. Novak used up most of his rebuttal time, but he gave Mr. Rosenthal a little extra time, so we'll give you your three minutes. [00:31:23] Speaker 00: My opponent kept saying that there's no proof that oxidation is actually occurring. [00:31:28] Speaker 00: I just go back to paragraph 159 that you can read. [00:31:31] Speaker 00: That's a scientific fact. [00:31:32] Speaker 02: Now, I don't think that's a fair characterization of his statement at all. [00:31:36] Speaker 02: He didn't say there's no proof oxidation is occurring. [00:31:37] Speaker 02: He said there's no proof that it's the washing step that's causing it, as opposed to the ambient air, since the washing step takes place over a series of days. [00:31:45] Speaker 00: I stand corrected. [00:31:46] Speaker 00: So paragraph 159 says that oxygen is effective oxidizing agent in air or dissolved in water. [00:31:53] Speaker 00: So that's my point. [00:31:55] Speaker 03: He's saying that that paragraph related to a different claim? [00:31:58] Speaker 00: No, no. [00:31:59] Speaker 00: That's a scientific fact. [00:32:00] Speaker 00: He was talking about a different claim, but this was a one sentence in that paragraph, which is a scientific fact. [00:32:06] Speaker 00: It doesn't relate to any particular claim that oxygen in air and oxygen in water oxidizes reduced Q10 is a fact. [00:32:15] Speaker 00: It's a scientific fact. [00:32:16] Speaker 00: There's no dispute over that. [00:32:18] Speaker 00: I mean, that's what any expert would agree with that, and even my opponent agrees with that, that oxygen in air and oxygen in water [00:32:28] Speaker 00: oxidizes the reduced Q10. [00:32:30] Speaker 00: There's no disputa for that. [00:32:32] Speaker 00: That's all he was saying. [00:32:35] Speaker 00: Let me add one more thing in my time. [00:32:40] Speaker 00: They're arguing that they rely on oxidation to incur in their production process based on passive oxidation. [00:32:47] Speaker 00: And the process doesn't last five days. [00:32:50] Speaker 00: Their typical process is like 105 hours or 110 hours, right? [00:32:55] Speaker 00: But it is a process. [00:32:57] Speaker 00: The process begins, as Judge Moore pointed out, with reduced Q10 at 81.8%. [00:33:02] Speaker 00: At the end of that process, the reduced has to be gone, and it has to be 100% oxidized. [00:33:12] Speaker 00: That's what their process is producing, oxidized Q10. [00:33:17] Speaker 00: And as Judge Moore pointed out, in each step in that process, there's a significant drop in that reduced level in the washing and drying steps. [00:33:25] Speaker 00: and in the washed up after extraction. [00:33:28] Speaker 00: Those are included because you can't take the risk of you're going to end up with 0% at the end of the process with passive oxidation. [00:33:37] Speaker 00: You need those steps there to make sure that when you get to the end, you have all oxidized Q10. [00:33:44] Speaker 00: Now, what does Conica do? [00:33:46] Speaker 00: They use an oxidizing agent to do the same thing. [00:33:48] Speaker 00: After the extraction step, they have a chemical reaction [00:33:53] Speaker 00: that guarantees at the end of the process you end up at zero. [00:33:57] Speaker 00: Any industrial process could not take the risk of at the end you would end up with 25% reduced and 75% oxidized when your process is meant to make oxidized Q10. [00:34:10] Speaker 00: That's why those steps are in there, the wash and drying step before extraction and the step after extraction. [00:34:17] Speaker 00: And they are clearly causing oxidation and it's not from passive oxidation. [00:34:22] Speaker 00: I just got one second left. [00:34:24] Speaker 00: That's all I have here. [00:34:25] Speaker 00: Thank you. [00:34:27] Speaker 04: Thank you, Mr. Novak. [00:34:28] Speaker 04: We'll take the case on your advisement. [00:34:30] Speaker 04: Thank you. [00:34:32] Speaker 04: All rise. [00:34:33] Speaker 04: The Honorable Court is adjourned until tomorrow morning. [00:34:37] Speaker 04: It's an o'clock a.m.