[00:00:00] Speaker 00: zero chance in biotech versus so it's really on [00:00:47] Speaker 04: If we affirm the next case following, is this thing moot? [00:01:04] Speaker 04: So you said yes, right? [00:01:23] Speaker 04: I'm not going, I will support his questions about patents, to address double patent names in light of the 272195 patents they are issuing next year. [00:01:35] Speaker 04: But I'd like to focus on time marks according to the agreement with the so-called Gilead issue. [00:01:41] Speaker 04: which is a very important issue in which there's been some discrepancy in this report, and in this case, it was an opportunity for the court to clarify the issue. [00:01:53] Speaker 04: In this report, in our view, long leaks and helium [00:01:58] Speaker 04: What do you read in Gilead that suggests that it's [00:02:22] Speaker 00: its weight should not cover the circumstance. [00:02:25] Speaker 04: Is there any particular language in Gilead that you could point to? [00:02:38] Speaker 04: We're going to find at the states in Gilead, I think it needs the proper rule of decedent in this case. [00:02:45] Speaker 04: And by way of background, Gilead recognized the fire double fattening law before the URAA. [00:02:57] Speaker 04: focused on issue dates of patents, not yet for issue dates, and that it did not adequately address potential problems under the URAA. [00:03:08] Speaker 04: Under the URAA, patent terms could longfully be extended by the manipulation of priority dates. [00:03:17] Speaker 04: And the Gilead case and the later Admin cases both present circumstances where priority dates [00:03:24] Speaker 04: were doubled, so that two different 20-year terms resulted, and the result was an extension of that term. [00:03:33] Speaker 04: And that's what the Gilead case was directed towards. [00:03:37] Speaker 04: However, Gilead relies on what are called the Bedrock Principle, and when a path inspires a public to be free to use [00:03:47] Speaker 04: the invention. [00:03:48] Speaker 04: That's a venerable tradition that's goes back a hundred years in our law. [00:03:53] Speaker 04: It's the essential trade-off for passenger. [00:03:56] Speaker 04: We accept that. [00:03:57] Speaker 04: We accept the legal analysis. [00:03:59] Speaker 04: But to me, to us, to she is, that the idea that the public should be free to use expired patents [00:04:08] Speaker 04: is something of an overstatement. [00:04:10] Speaker 04: And Gilead recognizes that in note five. [00:04:14] Speaker 04: In note five, it notes that, for example, an interpayment improvement patent made a lot of the public's right to use an expired patent. [00:04:28] Speaker 04: And there are other examples that are easy for you to apply to the law, or an act of Congress, such as Hatch-Waxman for the State Department provision of 121 protects [00:04:38] Speaker 04: Let's just look at five, because I guess I'm not really absorbing what you're saying. [00:04:51] Speaker 00: It says note that we address only obvious variants of the invention, not separately patentable improvements. [00:04:59] Speaker 04: Is that the sentence you're relying on? [00:05:15] Speaker 04: of how an expired patent may not be practiced. [00:05:19] Speaker 04: And then, in our reading, the key point is the last sentence. [00:05:24] Speaker 04: The point of the patent and doctrine is to protect the government and to protect the public from attempts by inventors to effectively extend their patent term to a later expiring patent claiming a patently distinct subject matter. [00:05:40] Speaker 04: And I can argue that it turns the analysis to the question, has the patentee done anything to effectively extend patent terms? [00:05:51] Speaker 04: Not that it's expired, but on the facts of the case, has the patentee done anything, as by manipulating priority dates, as by manipulating issue dates, to effectively extend patent terms? [00:06:05] Speaker 04: That's point one. [00:06:07] Speaker 04: Point two is for the note six. [00:06:10] Speaker 04: And footnote 6 drops from the discussion about how the expiration of a package of the public free practice invention. [00:06:22] Speaker 04: And footnote 6 says there are exceptions to that rule, of course. [00:06:27] Speaker 04: So let me see if I understand your point. [00:06:35] Speaker 00: So you're saying that that second sentence relies only on instances where the inventor is affirmatively trying to do something and in your circumstance you're saying it's different. [00:06:45] Speaker 04: but the part of the analysis, yes, that sentence returns the discussion and argument to the roots of double patent. [00:06:54] Speaker 04: Double patent legalizes two ideas in a case law. [00:06:58] Speaker 04: Improper extension of the patent term and the risk of multiple lawsuits on the same patent. [00:07:03] Speaker 04: improper extension of the patent term is an argued part of a double patenting analysis. [00:07:10] Speaker 04: And where there is no such risk, it doesn't have to be incurred. [00:07:14] Speaker 04: If there's no such risk as there is in the DOEI circumstance, as there is in the pre-URAA circumstance where there's sequential issue dates, then the reasons for double patenting have disappeared. [00:07:30] Speaker 04: So that's what I'm trying for. [00:07:32] Speaker 03: So do you want us to focus and give you an analysis and say that it should be based on date of expiration and not the date of issuance? [00:07:43] Speaker 04: We're okay with the date of expiration as the general rule. [00:07:47] Speaker 03: But if you go by the date of expiration, it doesn't matter what the patentee has done prior to that in order to extend the patent. [00:07:54] Speaker 03: I mean, you have a date of expiration. [00:07:57] Speaker 04: That's completely true, but then you have to deal with footnote 6. [00:08:01] Speaker 04: And footnote 6 has certain sections, and the exception that it illustrates is patent term extension. [00:08:08] Speaker 04: So what is that? [00:08:10] Speaker 04: Patent term extension is 352SC156. [00:08:13] Speaker 04: So basically where FDA has delayed the approval of a drug, [00:08:19] Speaker 04: Patent date obtained an extension of one and only one patent that covers that code. [00:08:26] Speaker 04: That's the statute. [00:08:28] Speaker 04: So essentially it's recognizing in the court of appeals, the Gilead case is recognizing in no sense. [00:08:34] Speaker 04: There are many instances where a patent is extended by law [00:08:40] Speaker 04: And there are other patents in that same family that may be patentably in the state that have expired or will expire. [00:08:47] Speaker 04: And the footnote is saying, hold on. [00:08:50] Speaker 04: Don't over-read this analysis. [00:08:53] Speaker 04: Apply it intelligently. [00:08:55] Speaker 04: And with patent-term extension, Congress has said that one patent and one patent only in a family that covers the drug can be extended. [00:09:06] Speaker 04: And the footnote, I believe, is saying, [00:09:08] Speaker 04: Gilead had a decision that wasn't common with that, even though, as Tegrena just asked, and look just in case of exploration, the extended patent would expire later than the other ones in his family. [00:09:24] Speaker 03: I think maybe, let's say your argument makes a lot of sense and it's valid and legitimate, but then you have to deal with the [00:09:33] Speaker 03: the Irving Brown Administrative Act. [00:09:35] Speaker 03: You have to deal with the URAA. [00:09:37] Speaker 03: And that changes your argument. [00:09:40] Speaker 03: That's the end of that. [00:09:41] Speaker 04: Well, I'd like to take these two principles I just signed in Gilead and apply them to the URAA. [00:09:47] Speaker 04: And when I apply them to the URAA, what I find is, Congress, just as it did with the Confederate extension, where it permits one faculty to be extended, [00:09:57] Speaker 04: In the URAAA, Congress permitted patents that were filed prior to the URAAA to have a term of 20 years required priority date or 17 years initiated, whichever is longer. [00:10:13] Speaker 04: And Congress must have recognized there, just as it did with the captain term extension, that we have a family of captains that are being prosecuted. [00:10:25] Speaker 03: And I think there you go again, you're focusing on issuance. [00:10:28] Speaker 03: But even under the URAA, the focus is on the expiration date. [00:10:34] Speaker 04: Under the URAA, it is permitted to be 17 years from issuance, which is longer than 20 years from the priority date. [00:10:52] Speaker 04: The effect of the judge's ruling here is to reduce our passion, to say, no, we weren't entitled to 17 years of issuance. [00:11:01] Speaker 04: Instead, you're entitled to 20 years from the priority date. [00:11:05] Speaker 04: That's the opposite of what Congress promised us. [00:11:07] Speaker 04: And the question then is, did anything happen that warrants that outcome? [00:11:12] Speaker 04: What happened is, we filed a 444 patent after the URAA. [00:11:18] Speaker 03: Well, what may be what happened is that you have received an unjustified extension for the patent. [00:11:25] Speaker 03: So the deal that's made with the public, where the public can now exercise the patent upon its expiration, [00:11:32] Speaker 03: That becomes null and void, and that's the problem. [00:11:35] Speaker 03: That's the problem with your case. [00:11:38] Speaker 04: That's the argument that's been made by the district judge, but frankly, I don't see how you can use the English language to say you need anything to extend the term 471-10. [00:11:50] Speaker 04: We got it back, it was 17 years, it expired in 2018. [00:11:53] Speaker 04: What did we do to extend its term? [00:11:56] Speaker 04: We did nothing to extend its term. [00:11:58] Speaker 04: It's fundamentally different than the pre-URA cases where you have sequential issue dates. [00:12:04] Speaker 04: It's fundamentally different than the newly-executed instance where you have standard priority dates. [00:12:10] Speaker 04: The 471-10 has the same priority date as the 444. [00:12:15] Speaker 04: We didn't mess around with that. [00:12:16] Speaker 04: It's got the issue data that Congress provided, and respectively, I think it's just a distortion of the English language to say that its term has been extended by anything that we did. [00:12:28] Speaker 03: We obtained a shorter- Well, look, it was extended by statute. [00:12:31] Speaker 03: Because now you have a later patent that has substantially the same claimed matter in it, and it's now receiving a 20-year expiration date, whereas the earlier patent had a 17 expiration date. [00:12:45] Speaker 03: If we just simply go by numbers, then you get a free ride. [00:12:50] Speaker 04: When we don't get a free ride, the analysis focuses on the fact that the extended term of the 471 patent has come out of time. [00:13:00] Speaker 04: If I could just answer your question. [00:13:03] Speaker 04: I don't believe that one can view the facts in isolation of [00:13:08] Speaker 04: There's an exception to Gilead, but it has multiple exceptions, given one example. [00:13:14] Speaker 04: In our view, this is another example, an example where the difference in kind of terms is not attributable to the actual capacity, but is attributable solely to the integrating act of congress. [00:13:27] Speaker 04: that mandated different terms for these patents based on their different timing. [00:13:32] Speaker 04: And that should be an exception under Gilead, in the same way that a patent error extension is an exception under Gilead. [00:13:41] Speaker 04: Gilead makes sense on these facts. [00:13:43] Speaker 04: Gilead makes sense from almost all cases. [00:13:45] Speaker 04: If there are exceptions, footnote six says that and respectfully asks the court to grapple with those exceptions and to find that we are credible on this topic. [00:13:56] Speaker 04: Thank you. [00:14:07] Speaker 00: You need to talk into the mic somehow, because we're having a hard time hearing up here. [00:14:20] Speaker 00: Is that better? [00:14:23] Speaker 00: Okay. [00:14:23] Speaker 02: So this is a fairly extraordinary situation here, because the 471 patent was invalid over not just one, not two, but three patents. [00:14:33] Speaker 02: It's been validated not only by the district court below, but also by the Patent Office on multiple independent separate grounds. [00:14:41] Speaker 02: For this appeal alone, the 471 patent is invalid over the 444 patent. [00:14:47] Speaker 02: I'm going to give you the 272 and 195 patents because the two-way test does not apply for two separate independent reasons. [00:14:56] Speaker 03: Before we get there, let me ask you a question. [00:14:58] Speaker 03: Does it matter that the URAA is silent as to the treatment of double patenting? [00:15:07] Speaker 02: I don't think that it is not silent as a treatment of double patented because what it says is... It doesn't refer to it. [00:15:15] Speaker 02: It does implicitly, Your Honor, when it says subject to any terminal disclaimer. [00:15:20] Speaker 03: What it says is... At that point, Congress is aware of this judicially created doctrine. [00:15:27] Speaker 03: Absolutely. [00:15:29] Speaker 03: Why did they not put it into the statute? [00:15:31] Speaker 02: So that's what I'm saying. [00:15:33] Speaker 02: What they said is you get the greater of the 17 years or the 20 years, quote, those terms are, quote, subject to any terminal disclaimer. [00:15:41] Speaker 02: The whole point of a terminal disclaimer is to obviate double patented concerns. [00:15:47] Speaker 02: So Congress was addressing, in our view, quite directly [00:15:51] Speaker 02: The double-cabin diagram is saying that it continues to apply by saying subject to any term of disclaimer. [00:15:57] Speaker 02: There would be no other reason to include that phrase. [00:16:01] Speaker 02: Now, Gilead itself, to get back to the Gilead 444 pattern, look, there's no way to distinguish that case in any principled way. [00:16:10] Speaker 02: This court framed the issue in Gilead in a way that applies directly here. [00:16:15] Speaker 02: The question the court asked is, [00:16:17] Speaker 02: Can a later issue, earlier to earlier expiring patent, serve as a double patent reference? [00:16:25] Speaker 02: That applies here. [00:16:26] Speaker 02: And to answer that question, this court relied on a bedrock principle, century-old, directly from the Supreme Court, which states, here's the Supreme Court, 1896, it is self-evident that an expiration of a patent [00:16:43] Speaker 02: It is self-evident that on the expiration of a patent, the monopoly created by it ceases to exist and the right to make the thing formally covered by the patent becomes public property. [00:16:58] Speaker 02: There is nothing unfair about applying that principle to this case. [00:17:04] Speaker 00: But what about the footnote that your friend pointed us to in that second sentence which suggests [00:17:09] Speaker 00: The protection is limited to attempts by inventors to effectively extend their patents. [00:17:22] Speaker 02: This court has never looked to intent-based analysis to determine whether or not the double patenting doctrine applies. [00:17:31] Speaker 00: All it looks at is comparing the claims and asks whether the later expiring patent... Well, you can tell us that, and you may well be right, but how do we conform that to this particular sentence? [00:17:45] Speaker 00: Because here we're talking very broadly about the point of the double patenting doctrine. [00:17:52] Speaker 02: Yeah, and that's what happened here. [00:17:55] Speaker 00: Well, read the rest of the sentence. [00:17:57] Speaker 00: I mean, you're saying that we've never combined it or relied on the intent or what the inventors are doing, but doesn't this sentence suggest globally? [00:18:07] Speaker 00: I mean, it's a pretty broad statement, right? [00:18:09] Speaker 00: The point of the whole doctrine. [00:18:12] Speaker 02: Yeah, what I'm saying is that there was, that is the situation here. [00:18:18] Speaker 02: Jansen deliberately and voluntarily obtained the 4-4-4 pattern, knowing that it would expire, this was their condom, nobody else's, knowing that it would expire in 2011. [00:18:31] Speaker 02: And under that bedrock principle that's been around for a century, what that meant is Jansen could not extend the term of the 4-4-4 pattern [00:18:41] Speaker 03: Beyond 2011, with a later expiring patent... Except that a statute came along that permitted them to do that. [00:18:51] Speaker 03: It gave them a statutory grant. [00:18:53] Speaker 02: The statute doesn't guarantee... The statute says 17 years or 20 years. [00:18:57] Speaker 02: It does say subject to any terminal disclaimers, which suggests that the document double patent still applies, number one. [00:19:02] Speaker 02: But number two, that statute doesn't guarantee patent terms. [00:19:06] Speaker 02: Pattern terms can always be cut short by any available invalidity defense, including double pattern. [00:19:13] Speaker 02: And in this case, it is a really classic case of double pattern. [00:19:16] Speaker 02: Mr. Diskin kept asking this question, what do we do to extend the term of 471 pattern? [00:19:23] Speaker 02: That's not the question. [00:19:24] Speaker 02: The question is, on Gilead, is what do they do to extend the term to the 4-4-4 path? [00:19:30] Speaker 02: That's the question Gilead demands that we ask. [00:19:33] Speaker 02: And if you wonder what this footnote 5 is cited to, look at the sentence on footnote 5. [00:19:39] Speaker 02: That principle, that's the bedrock principle, that principle is violated when a pattern expires. [00:19:45] Speaker 02: And the public is nevertheless barred from practicing obvious modifications. [00:19:50] Speaker 02: So the patent expired in 2011 with the 4-4-4 patent. [00:19:53] Speaker 02: Here, between one patent, the public is barred from practicing obvious modifications of the invention claimed in that patent because the inventor holds another later expired patent, the 471, with claims for obvious modifications of the earlier claimed inventions, the 4-4-4. [00:20:10] Speaker 02: So it really applies directly on its face. [00:20:16] Speaker 02: Let me move on to the 195 and 272 patents. [00:20:20] Speaker 02: First of all, the safe harbor issue. [00:20:23] Speaker 02: It's a statutory construction issue. [00:20:25] Speaker 02: There's nothing ambiguous about the statute. [00:20:27] Speaker 00: Can I just ask you before I just my own thing so I don't forget to ask you. [00:20:31] Speaker 00: I assume you agree with your friend that if we were to affirm the second appeal that we're hearing today in Janssen case, that would moot this case. [00:20:40] Speaker ?: That's correct. [00:20:41] Speaker 02: So, on the 195-278 packet, two packets, there is nothing ambiguous about the statute. [00:20:47] Speaker 02: It says it only applies to divisional applications. [00:20:50] Speaker 02: And here, Janssen filed a CIP. [00:20:53] Speaker 02: It really is straightforward statutory construction. [00:20:56] Speaker 02: That's all it is. [00:20:58] Speaker 02: Nothing supports the notion that when Congress said divisional application, that what it really meant was any application, including the CIP, which is a completely different application, [00:21:10] Speaker 01: You have to be careful there, Council, because a number of members of this panel worked on the Hill, so you're hard pressed to say what Congress really meant. [00:21:22] Speaker 02: True, but you do have to abide by the plain language, and here the plain language does say... I disavow having to work on the Hill. [00:21:33] Speaker 02: I accept the plain language. [00:21:36] Speaker 02: The visual application means the visual application therefore does not mean the CIP. [00:21:41] Speaker 02: The main thing that Janssen relies on here is the effort to amend its application post issuance during the reexamination procedures. [00:21:50] Speaker 02: That does not apply for two independent reasons. [00:21:52] Speaker 02: The first reason is that the amendment under re-examination cannot apply until the reissue certificate issues and is published. [00:22:03] Speaker 02: That did not happen. [00:22:05] Speaker 02: So for our opinion, the final judgment from the district court, the only thing that matters is the unamended original file, CIP, back in the 1990s. [00:22:14] Speaker 00: Okay, I'm going to bring you back to the first point, which is what your friend spent all of his time on, so I think in fairness you ought to be responding to his arguments. [00:22:23] Speaker 00: What about footnote six? [00:22:25] Speaker 00: I mean, footnotes in Gilead, I'm sorry. [00:22:28] Speaker 00: It clearly recognizes that there are exceptions to the rule, and why shouldn't this circumstance [00:22:36] Speaker 00: Which is different. [00:22:37] Speaker 00: I mean, you may say the difference doesn't matter, but there is a difference between the factual circumstance here and the one in Gilead. [00:22:44] Speaker 00: Why shouldn't that footnote apply? [00:22:46] Speaker 02: So all footnote six says is there are some exceptions, and it was a particular exception that they addressed, patent term extensions. [00:22:52] Speaker 02: There was a statutory basis for creating a perception that Congress adopted with patent term extensions. [00:22:58] Speaker 02: We don't have anything like that. [00:22:59] Speaker 00: You want to stay close to the microphone. [00:23:01] Speaker 00: I'm sorry. [00:23:03] Speaker 00: You can walk around with it. [00:23:06] Speaker 02: We don't have anything like that here. [00:23:08] Speaker 02: Because here, all we have is 154 seats. [00:23:11] Speaker 02: It does nothing more than calculate pattern terms, which have always been recognized as something that can be cut short by any available invalidated events, including [00:23:22] Speaker 02: So if it's that obvious, why didn't Congress write that into the law? [00:23:51] Speaker 02: I would say this, Your Honor, the double-packing doctrine that we're talking about, this basic legal principle, has been around since the 1800s. [00:24:02] Speaker 02: This would define that Congress decided for this special group of pacts, transition pacts, to create a brand new rule and overrule a century-old doctrine. [00:24:13] Speaker 02: Congress would have had to do it [00:24:15] Speaker 02: explicitly expressed it with something your legislative history suggested that was their intent. [00:24:20] Speaker 02: But they did the opposite. [00:24:22] Speaker 02: Literally, there's no reason to mention a term of disclaimer unless you're recognizing the double patenting document still applies. [00:24:29] Speaker 02: Now, with my time left, there's certain issues on the other two patents that are unique to us. [00:24:35] Speaker 02: So, on the 195 and 272 patents, we believe the state law doesn't apply in plain language. [00:24:42] Speaker 02: But the two-way test, Janssen agrees that the 471 patent does not survive one test. [00:24:50] Speaker 02: So they're looking for application of the two-way test, which is obviously a narrow exception that's rarely applied. [00:24:57] Speaker 02: For two independent reasons, the two-way test does not apply. [00:25:01] Speaker 02: The first is that the applications leading to the 272 patent and the 471 patent were filed on the same day. [00:25:09] Speaker 02: which means you do not have that reversal in the order of issuance required by the logic of the two-way test. [00:25:18] Speaker 02: The PTO, for literally 30 years, has practiced within MPEB, has followed the practice that same-day file applications are treated as simultaneously file applications mandating to the one-way test. [00:25:33] Speaker 02: Here, and this is important, the only argument [00:25:37] Speaker 02: that Janssen is arguing on this appeal. [00:25:41] Speaker 02: To get over Boyd, this same day filing problem is this serial number party. [00:25:47] Speaker 02: They say 471 patent has an earlier serial number and therefore implicitly it must have been filed before the 272 application, eight digits apart. [00:25:58] Speaker 02: First of all, they might have been delivered in the same envelope at the same time, so that's just speculation. [00:26:03] Speaker 02: Number two, they didn't make this argument. [00:26:06] Speaker 02: Judge Wolf never wrote one word about the serial number of argument. [00:26:10] Speaker 02: We didn't build a record on that. [00:26:12] Speaker 02: We didn't brief it. [00:26:13] Speaker 02: We didn't consider it. [00:26:14] Speaker 02: We didn't resolve it. [00:26:15] Speaker 02: It's classically waived. [00:26:17] Speaker 02: The second reason the two-way test does not apply to sub and independent reason is that the PTO is clearly not solely responsible for any alleged reversal in order of issuance. [00:26:29] Speaker 02: Three points. [00:26:30] Speaker 02: There's a four-year critical period from February of 1994 to December of 1997. [00:26:36] Speaker 02: Jansen took three extensions in time, heating up eight months of that four-year period. [00:26:44] Speaker 02: That's a substantial portion of the period that we're looking at. [00:26:47] Speaker 02: Number two, Jansen left the prosecution in the 471 pattern. [00:26:51] Speaker 03: And just to be clear, any delay that we're talking about here has to be solely on the account of the PTO. [00:26:58] Speaker 03: If there's any delay on the patentee, then we will go back to a two-way test. [00:27:04] Speaker 02: Exactly. [00:27:05] Speaker 02: And so we've got the 800-year extension of time. [00:27:08] Speaker 02: We've got literally a whole year where Janssen left the prosecution sit dormant. [00:27:14] Speaker 03: For an entire year, from May of 1996... There was some delay by the PTO. [00:27:18] Speaker 02: There may have been some delay by the PTO, but that's not the inquiry. [00:27:21] Speaker 02: To get the advantage of the two-way test, it had the reversal in the order of issuance has to be solely the fault of the PTO. [00:27:29] Speaker 02: Here, you can't say it. [00:27:30] Speaker 02: You got eight months, you got a year where they decided not to, where they pursued with that abandonment appeal. [00:27:36] Speaker 02: And finally, I just want to make a point that I don't know was as clear as it could have been before. [00:27:42] Speaker 02: Jensen got an allowance on three of the five asserted claims in this case in August of 1997. [00:27:50] Speaker 02: All they had to do was say yes, and the 471 patent, three of the relevant claims, would have issued before the 195 patent in December of 1997. [00:28:02] Speaker 02: Four month difference. [00:28:03] Speaker 02: Janssen goes a long way toward saying, yeah, but even if we'd accepted that because of the way the Patagonus works, I think we still would have had a 4-7-1 meeting issue after the 195. [00:28:15] Speaker 02: You know what that ignores? [00:28:16] Speaker 02: It ignores the preceding delays. [00:28:19] Speaker 02: The eight-month delay, the one-year delay, if Janssen hadn't taken those delays, they could have gotten that allowance for the three planes for the 471 patent, literally a year and a half before the 195 patent issues. [00:28:33] Speaker 02: That precludes the application of the two-way test. [00:28:37] Speaker 02: And finally, I have 30 seconds, so I just want to make another final point, which is you need to power deal. [00:28:43] Speaker 02: Even if this door applies the two-way test, [00:28:47] Speaker 02: The 471 patent remains invalid on your Geneva, Pfizer, and Sun. [00:28:54] Speaker 02: The 471 patent is a claim for two antibodies, a composition claim. [00:29:00] Speaker 02: What those cases hold is in those circumstances you have to also look at the specification when comparing the two sets of patents. [00:29:07] Speaker 02: When you look at the specification of the 471 patent, it tells you the utility of the antibody is to treat rheumatoid arthritis and treat RIA, which matches up precisely to the claims of the 195 and 272 patents. [00:29:20] Speaker 02: If the court has no further questions, I thank you. [00:29:30] Speaker 04: And I'll say some more on the Gilead issue and other issues, I'm sure. [00:29:41] Speaker 04: The Gilead issue is a very important issue for patent practitioners and companies. [00:29:45] Speaker 04: It is important. [00:29:48] Speaker 04: The decision, as I said before, is correct. [00:29:51] Speaker 04: We don't have a problem with it. [00:29:53] Speaker 04: But I recognize, in the end, it was a decision on the circumstances of that case [00:29:57] Speaker 04: Footnote 6 makes it perfectly clear the court recognized, of course, their exceptions. [00:30:03] Speaker 04: The example gave is a classic example of an exception, which difference in expiration dates was caused by an act of Congress, not by acts of the patent-gated Congress-employed patent-given extension. [00:30:17] Speaker 04: But in our case, the [00:30:19] Speaker 04: Transition from free to closed URA is a very significant issue for patent owners. [00:30:26] Speaker 04: It was critical to Congress to respect the rights of the owners and their investment in developing patents. [00:30:36] Speaker 03: So this relates to some of the argument that Jerefuna made. [00:30:40] Speaker 03: Now, when you filed the 444 patent, when I filed the 444 patent in 2001, so you got a priority going back to 1991. [00:30:49] Speaker 03: Now, you should have been aware that it's going to expire prior to the 471 patent, right? [00:30:57] Speaker 03: So, and that that was going to raise these ODP concerns. [00:31:03] Speaker 03: It seems to me that you made a calculated risk at that time. [00:31:10] Speaker 04: I disagree, Judge. [00:31:14] Speaker 04: First off, Iliad didn't exist. [00:31:17] Speaker 03: The ODP doctrine exists. [00:31:20] Speaker 04: The ODP doctrine said, you know the issue dates, and under pre-Iliad law, the issue date of the 444 patents later than the 471, [00:31:36] Speaker 04: had the URIA not existed, 444 patent would have run out longer than the 471. [00:31:42] Speaker 04: That would have raised a double patented question. [00:31:46] Speaker 04: So it would require a terminal disclaimer. [00:31:48] Speaker 04: And in fact, patent office required a terminal disclaimer for the 444. [00:31:53] Speaker 04: And we prevented that terminal disclaimer, guaranteeing there was no risk of multiple litigation on the 444. [00:32:00] Speaker 04: But it's a shorter patent. [00:32:01] Speaker 04: I mean, essentially, prior to the URAA, we would have been able to obtain a 4-4-4 patent in the Manhattan law. [00:32:09] Speaker 04: This is a 4-7-1. [00:32:11] Speaker 04: And this court would have viewed that as completely unexceptional, saying, effectively, it's more likely to have been granted the original patent. [00:32:19] Speaker 04: And it made meaningless in terms of the legality of the patents. [00:32:23] Speaker 04: And after the URAA, we went up with a shorter path. [00:32:29] Speaker 04: So it is hard, I think, to fault Jansen for the routine prosecution of ongoing matters, which I frankly think is exactly what I was expecting would happen after the URAA. [00:32:41] Speaker 04: No reason to think it would be any different. [00:32:44] Speaker 04: Factors would continue to be prosecuted. [00:32:45] Speaker 04: So now, it would be shorter. [00:32:47] Speaker 04: We accepted no risk in my view. [00:32:52] Speaker 04: We simply prosecuted patents. [00:32:54] Speaker 04: And the promise that Congress made to us was it would get any longer, the 471 of 17 years or 20. [00:33:01] Speaker 04: The effect of the District Court's ruling of interpreting a billion ways being closed is just the shorter, not the longer. [00:33:08] Speaker 04: That's not what Congress promised. [00:33:10] Speaker 04: I have some friendly advice for you, Mr. Diskin. [00:33:31] Speaker 01: One is, judges below don't argue. [00:33:35] Speaker 01: They issue opinions. [00:33:37] Speaker 01: And number two, [00:33:38] Speaker 01: While the judge is talking, please don't interrupt them. [00:33:42] Speaker 01: That was done repeatedly. [00:33:45] Speaker 00: Thank you. [00:33:46] Speaker 00: We thank both sides and the case is submitted.