[00:00:00] Speaker 04:
Case number 161644, Power Survey LLC versus L3 Communications Holdings.

[00:00:08] Speaker 04:
Is it Pickard or Picard?

[00:00:11] Speaker 04:
Picard.

[00:00:12] Speaker 04:
Okay, Mr. Picard, you want three minutes for rebuttal?

[00:00:14] Speaker 00:
Yes, Your Honor, thank you.

[00:00:21] Speaker 00:
Byron Picard on behalf of the Appellant Power Survey, may it please the Court

[00:00:26] Speaker 02:
Clarify something for me early on, okay?

[00:00:30] Speaker 02:
At page 17 of the blue brief, you say, I'll read it to you, it's okay.

[00:00:35] Speaker 02:
On appeal, power survey does not challenge the sufficiency of L3's prima facie case of obviousness, but does challenge the board's findings and its evaluation of power survey's objective indicia of non-obviousness.

[00:00:49] Speaker 02:
I interpreted that statement to mean that you conceded your obviousness argument on appeal.

[00:00:56] Speaker 02:
The statements seems to conflict with arguments that you make throughout your blue brief that the EFA manual is not prior reference.

[00:01:06] Speaker 02:
Am I correct in my interpretation or what?

[00:01:09] Speaker 00:
Yeah, I apologize that we weren't perhaps clear enough for your honor.

[00:01:13] Speaker 00:
What we were trying to get across with that statement is with the grand factors, we've got the secondary indicia of non-obviousness that stands on par with the other

[00:01:24] Speaker 00:
elements of the prima facie case, and for this court to address those, they have to weigh that against the prima facie showing of obviousness, but we weren't attacking whether they had, for example, had a missing element and so forth.

[00:01:37] Speaker 00:
But we are attacking whether the EFA manual was established as prior art based on properly admitted evidence.

[00:01:44] Speaker 00:
I hope that addresses your Honor's question.

[00:01:46] Speaker 04:
That was just unfortunate phrasing.

[00:01:49] Speaker 00:
I think so.

[00:01:50] Speaker 04:
Especially because we really

[00:01:52] Speaker 04:
have explained repeatedly that there is no such thing as a prima facie case of obviousness in IPRs.

[00:01:59] Speaker 00:
I think it is unfortunate phrasing and I believe that if you were to read the

[00:02:05] Speaker 00:
The gist of the blue brief is that what we're saying is at the end of the day, the arbiter must look at this objective indicia and wait against the strength of the other obviousness evidence.

[00:02:18] Speaker 04:
But would we then, if we agree with you, that they should have analyzed that objective indicia, do we have to remand?

[00:02:27] Speaker 00:
We believe that the constellation of errors here is sufficient to provide for a reversal, but a remand is

[00:02:34] Speaker 00:
depending on how the court views the strength of the objective condition, it could be an alternate remedy here.

[00:02:41] Speaker 00:
We've asked for that as well.

[00:02:42] Speaker 04:
What's your response to the argument that there isn't enough nexus shown as it relates to the secondary consideration?

[00:02:48] Speaker 00:
As we explained in our reply brief, there is a presumption of nexus where evidence is presented to show that there's a product that embodies the claims.

[00:02:59] Speaker 00:
We provided that to the board below through declaration testimony.

[00:03:05] Speaker 00:
that product has commercial success, for example, there's presumption that that success is tied to the patented product and therefore the invention.

[00:03:14] Speaker 00:
On the other elements, for example, the copying, we have

[00:03:19] Speaker 00:
the appellees own efforts to copy what was admittedly our product.

[00:03:24] Speaker 00:
They were aware of our patent applications at the time.

[00:03:28] Speaker 00:
So there's evidence there of a nexus as well.

[00:03:31] Speaker 00:
I will say on that nexus question, the board really didn't address the copying evidence at all.

[00:03:37] Speaker 00:
It said essentially, well, even if there was evidence of copying, it wouldn't be enough.

[00:03:42] Speaker 00:
And they skipped over that step of the objective in DISA inquiry.

[00:03:47] Speaker 04:
On your evidentiary argument,

[00:03:49] Speaker 04:
how do you get around the fact that we're supposed to view this as for an abuse of discretion?

[00:03:56] Speaker 00:
So Your Honor is correct about the standard of review and if we look to Federal Rule 602 and again that the burden is always on the petitioner in these IPRs and then Rule 602 provides that there must be some evidence offered to establish that the witness had a personal knowledge for his or her testimony.

[00:04:14] Speaker 00:
If we look at Mr. Johnson's testimony here, his

[00:04:19] Speaker 00:
Declaration on its face doesn't establish that.

[00:04:21] Speaker 00:
He says in paragraph one, I make the following statements based on personal knowledge.

[00:04:25] Speaker 00:
And then he hedges a little bit and says, and records kept by NARDA in the ordinary course.

[00:04:30] Speaker 00:
And then he concludes his declaration.

[00:04:32] Speaker 00:
By the way, that was at Joint Appendix 4137.

[00:04:34] Speaker 00:
He concludes his declaration at paragraph 13, which is at the Appendix 4140, saying, I hereby declare that all statements made herein of my own knowledge are true, and that all statements made on information and belief are believed to be true.

[00:04:48] Speaker 00:
So we have, for three sources of information that he's offering his deck, there's personal knowledge, there's statements based on review of documents, and then this information and belief

[00:05:00] Speaker 00:
which respectfully is often offered in instances where the individual has no personal knowledge.

[00:05:04] Speaker 00:
But he doesn't specify in his declaration which of those statements is based on personal information, which is based on documents, with perhaps the exception of the sales data, and which is based on personal knowledge.

[00:05:16] Speaker 00:
So we objected to this evidence as lacking personal knowledge, which triggered the ability of L3 to offer supplemental evidence.

[00:05:25] Speaker 00:
And that could have been by additional testimony from Mr. Johnson,

[00:05:28] Speaker 00:
could have been by testimony from an entirely different witness.

[00:05:34] Speaker 00:
And L3 chose not to provide any supplemental evidence.

[00:05:37] Speaker 00:
We then took Mr. Johnson's deposition to determine whether, in fact, he had personal knowledge of this.

[00:05:43] Speaker 00:
And I would like to keep this court's mindful of the fact that the board's determination at the EFA was... Let me ask you two questions on that line.

[00:05:53] Speaker 02:
One, as far as I know,

[00:05:57] Speaker 02:
copyright dates or the date something is distributed.

[00:06:00] Speaker 02:
Do you have any authority of a different event?

[00:06:04] Speaker 00:
That is not my understanding of what a copyright date suggests.

[00:06:07] Speaker 00:
So something enjoys copyright protection the moment it is reduced, an expression is reduced to a tangible form and the author of a work or creator of a work can put that copyright notice on the work without ever distributing it to the public.

[00:06:23] Speaker 00:
And this court's decision in In Re Lister essentially stands for the proposition that... In a printed version?

[00:06:30] Speaker 00:
Excuse me?

[00:06:31] Speaker 00:
In a printed version.

[00:06:32] Speaker 00:
Yes.

[00:06:33] Speaker 00:
We have here a printed manual, but the question is, was it disseminated to the public?

[00:06:39] Speaker 00:
And the only basis for that the board found that was Mr. Johnson's claim, his statement that there was a standard practice to include the manuals with sales of the units.

[00:06:49] Speaker 00:
And he doesn't explain in his declaration why or how he could have had personal information of that.

[00:06:55] Speaker 00:
We have his job title.

[00:06:56] Speaker 00:
And beyond that, all we have about his job duties are that he participated in editing the manual.

[00:07:04] Speaker 00:
When we take his deposition, he testified that he never witnessed the packing or shipment of units.

[00:07:12] Speaker 00:
There was no testimony that he was overseeing individuals who were responsible for that, that he gave any directions to include the manual.

[00:07:21] Speaker 00:
So what we're left with is a witness that really doesn't have any information about

[00:07:25] Speaker 00:
the practices themselves for packaging the manuals with the products.

[00:07:30] Speaker 00:
And without that, Rule 602 is nothing.

[00:07:31] Speaker 02:
That's not the way I read the testimony.

[00:07:34] Speaker 02:
But according to Power Survey, I'm sorry, in the red brief, L3 says, according to Power Survey, Johnson could not corroborate his testimony through formal written policies or other physical evidence, which it deems fatal.

[00:07:50] Speaker 02:
However, Power Survey failed to make these arguments before the Board and improperly raises them for the first time on appeal.

[00:07:57] Speaker 02:
Is that correct?

[00:07:59] Speaker 00:
No, it is not correct, Your Honor.

[00:08:00] Speaker 00:
I would direct your attention to Joint Appendix 1109.

[00:08:04] Speaker 00:
And this is the motion to exclude the Power Survey file before the Board below.

[00:08:15] Speaker 00:
And if you look at 1109,

[00:08:19] Speaker 00:
We say at the end of that single full paragraph there, but Mr. Johnson's testimony does not support these assertions because Mr. Johnson admitted during cross-examination that he does not have personal knowledge that the version of the EFA manual attached to his declaration was actually provided to customers, that it was ever posted to any website, or what NARA's practice actually was.

[00:08:41] Speaker 00:
When was that filed?

[00:08:48] Speaker 00:
I have a date here.

[00:08:49] Speaker 00:
It was filed with the board on about June 2, 2015.

[00:08:56] Speaker 00:
Procedurally, that typically comes toward the end of these IPR hearings just before trial.

[00:09:02] Speaker 00:
It's a date that's provided for in the board scheduling order.

[00:09:06] Speaker 00:
So that was raised below to the board.

[00:09:09] Speaker 00:
And I think it's important to keep in mind that this is not just a mere technicality.

[00:09:13] Speaker 00:
L3 had an opportunity to cure this.

[00:09:15] Speaker 00:
They could have gone to the manager who was responsible for packaging equipment at this time.

[00:09:22] Speaker 00:
As it turns out, Mr. Johnson said there were bills of sales that might have shown what was provided with this equipment.

[00:09:27] Speaker 00:
He never looked at the bills of sale, either before his declaration or before his deposition in this case.

[00:09:34] Speaker 00:
I think a glaring omission here.

[00:09:36] Speaker 00:
If Mr. Johnson's testimony is not based on personal knowledge, then it was not properly admitted in this case and the appropriate remedy here on appeal would be reversal because there's no other evidence that the board relied on to establish the EFA manual.

[00:09:52] Speaker 02:
Before your time runs, I want to move you back to the merits.

[00:09:56] Speaker 02:
In the blue break you say, power surveys claimed invention was innovative in two key respects.

[00:10:02] Speaker 02:
First, unlike any previous stray voltage detection technique, it was contactless in that the E field sensor need not touch the object to determine if it is energized.

[00:10:14] Speaker 02:
But the patents in suit say something else.

[00:10:17] Speaker 02:
For example, the 274 patent says it column 21 lines 1 to 5 and 16 to 22.

[00:10:22] Speaker 02:
Once it detected stray voltage has been confirmed by the interface operator and an object has been determined to be the likely source of the anomaly,

[00:10:33] Speaker 02:
The interface operator then may then proceed to record object-related information.

[00:10:39] Speaker 02:
For example, the interface operator may identify a lamppost as the potential source of a detected stray voltage anomaly and instruct the need for a utility crew to be dispatched.

[00:10:53] Speaker 02:
I read the 274 patent stating only that the operator can identify the exact source of an elevated electric field.

[00:11:02] Speaker 02:
Can you explain that?

[00:11:04] Speaker 02:
And then neutralize the field.

[00:11:06] Speaker 02:
Only the operator.

[00:11:08] Speaker 02:
As opposed to the... As opposed to the person running the sensor system.

[00:11:12] Speaker 00:
So what the sensor system does is... It just finds that there's a spike.

[00:11:18] Speaker 00:
It finds there's a spike, but that spike is associated with a distance or time information which the operator and his truck can correlate to the urban landscape that's adjacent to the truck, in the example where the system's on a truck.

[00:11:29] Speaker 00:
So it's a very important innovation that it tells you, you've got an electrified object that's emitting an e-field in very close proximity to the truck and that there is a confirmation in the kind of post activities, post detection activities that might occur.

[00:11:46] Speaker 00:
You want to know how much energy is contained on that, for example, to determine is this a true emergency, do we need a crew right now, can we wait some time.

[00:11:56] Speaker 00:
How do you square your Longfell

[00:11:59] Speaker 02:
need argument with the argument that utilities were well aware of this problem.

[00:12:08] Speaker 02:
They just didn't care to do anything about it.

[00:12:11] Speaker 02:
Until there were a couple of high-profile cases and then regulation kicked in.

[00:12:19] Speaker 00:
So there is evidence in the record that there were efforts to find better ways of identifying these electrified objects even before the Jody Lane death.

[00:12:29] Speaker 00:
I think the most salient errors in the board's objective and dish analysis was first with the copying.

[00:12:35] Speaker 00:
They sort of brush it off.

[00:12:35] Speaker 00:
They don't give it any true analysis.

[00:12:39] Speaker 00:
They seem to assume away, well, I'm not sure if there is any, but if there was, it wouldn't be enough.

[00:12:44] Speaker 00:
And then when we turn to the skepticism and the failure of others, I think the board does the incorrect analysis because it misidentifies the problem.

[00:12:55] Speaker 00:
an explanation in our papers that in the prior art there was a very labor-intensive process.

[00:13:00] Speaker 00:
People would go out on foot patrol.

[00:13:02] Speaker 00:
Imagine you're in New York City.

[00:13:03] Speaker 00:
You've got literally tens of thousands of things that need to be touched.

[00:13:07] Speaker 00:
And there was a contact-based approach there as well.

[00:13:09] Speaker 00:
And the board sort of took that and said, well, you've said you need a scalable, more efficient alternative to manual testing.

[00:13:15] Speaker 00:
And then they shift that and say, well, that must be contactless.

[00:13:18] Speaker 00:
And because of others' efforts to find a better way to do this involved contact methods.

[00:13:23] Speaker 00:
There were skateboards and wheelchairs that would

[00:13:25] Speaker 00:
drag probes on contact with the sidewalk and that sort of thing.

[00:13:29] Speaker 00:
Those don't qualify as failures by others.

[00:13:32] Speaker 00:
In the same vein, we offered a category of evidence about skepticism of others on the board.

[00:13:38] Speaker 00:
If you look closely at their opinion, it doesn't address skepticism.

[00:13:40] Speaker 00:
In fact, one of the pieces of skeptical evidence that we offered was this Woitzberger paper.

[00:13:46] Speaker 00:
They addressed that in the failure by others category.

[00:13:53] Speaker 00:
And frankly, even if they were to have

[00:13:56] Speaker 00:
properly done it in that category, they make an error and they say, well, that failure isn't relevant here because it wasn't shown to have occurred before the priority date and that's not the law here.

[00:14:04] Speaker 00:
Failures of others can occur after the priority date.

[00:14:07] Speaker 00:
Finally, on the commercial success prong, the board gave very little weight to the commercial success here and they can properly

[00:14:16] Speaker 00:
discounted that evidence by saying that there were these catalyst events and regulatory changes that were the real driver.

[00:14:24] Speaker 00:
If we look at it in sort of a different context, I don't think that makes sense.

[00:14:29] Speaker 00:
Imagine you are

[00:14:31] Speaker 00:
You have a valuable therapeutic out there.

[00:14:34] Speaker 00:
There's always going to be a catalyst event that makes someone choose one therapy over another.

[00:14:37] Speaker 00:
It's going to be an underlying health condition of symptoms or diagnosis of a physician.

[00:14:41] Speaker 00:
And the catalyst event is no different.

[00:14:43] Speaker 00:
Once these utilities realized there was a need for a solution, they looked out into the marketplace and the power survey invention was the best alternative.

[00:14:52] Speaker 00:
And that's why they enjoyed tremendous commercial success.

[00:14:57] Speaker 00:
With that, we submit that there are two reversible errors that the Board committed below.

[00:15:02] Speaker 00:
First, the admission of the Johnson testimony without which the EFA manual could be established as prior art.

[00:15:07] Speaker 00:
And secondly, the Board's reconciliation of errors and considering the objective indicia of non-obviousness would also require a reversal or alternatively remand.

[00:15:18] Speaker 04:
Okay.

[00:15:18] Speaker 04:
We'll save the rest of your time for rebuttal.

[00:15:19] Speaker 04:
Thank you.

[00:15:20] Speaker 04:
It's not much, but we'll give it to you.

[00:15:36] Speaker 03:
Morning, Your Honors.

[00:15:37] Speaker 03:
John Donahue, appearing on behalf of Appellee L3.

[00:15:42] Speaker 02:
Judge Lurie was sitting today to say he would expect an electrifying argument.

[00:15:53] Speaker 04:
You're not really relying on the copyright issue.

[00:15:56] Speaker 04:
Are you here?

[00:15:57] Speaker 03:
No, Your Honor.

[00:15:58] Speaker 03:
The copyright date issue is just one aspect of

[00:16:03] Speaker 03:
establishing that the EFA 300 manual was completed in 2002.

[00:16:14] Speaker 04:
It's certainly a factor that you're pointing to, but you would have to, if you were to rely on that, you would have to establish that all of the elements necessary under 803 to classify it as a business record, right?

[00:16:27] Speaker 04:
Correct.

[00:16:28] Speaker 04:
And you didn't submit sufficient evidence for that, correct?

[00:16:32] Speaker 03:
I don't believe that's the case, Your Honor.

[00:16:34] Speaker 03:
I think that it depends.

[00:16:38] Speaker 03:
If you discount entirely the testimony of Mr. Johnson, then you may have a point that there isn't enough evidence under 803.

[00:16:44] Speaker 04:
There are two different things, whether or not he had personal knowledge and whether or not you've established a business record.

[00:16:52] Speaker 04:
Even if we accept the level of knowledge that you've laid out for Johnson, there's no way that that qualifies under 803 as a business record.

[00:17:02] Speaker 02:
He doesn't say he's the custodian of documents.

[00:17:04] Speaker 03:
That's correct, Your Honor.

[00:17:05] Speaker 03:
He does not, but he does establish that it was a document created by L3 that was completed in February of 2002.

[00:17:16] Speaker 04:
Well, he doesn't establish any of that.

[00:17:18] Speaker 04:
I mean, he says that I know that we made a manual at some point, and I think that we sent them out, but he doesn't really establish when it happened.

[00:17:27] Speaker 04:
He doesn't establish where it was retained.

[00:17:30] Speaker 04:
He doesn't establish who ultimately made it.

[00:17:32] Speaker 04:
I mean, he doesn't have any of that.

[00:17:35] Speaker 03:
Your honor, he doesn't have all of that.

[00:17:40] Speaker 03:
I'll agree with you.

[00:17:41] Speaker 03:
He does not have all of it.

[00:17:43] Speaker 03:
But I think we have to look at Johnson, who Johnson is and what he's all about before we start trying to put into perspective what it is that he's saying.

[00:17:54] Speaker 03:
Johnson was the man at L3 for this product.

[00:17:58] Speaker 03:
This was his baby.

[00:17:59] Speaker 03:
He was the clear choice as the person to prepare or to execute this declaration.

[00:18:06] Speaker 03:
He had worked there for 30 years since 1985.

[00:18:08] Speaker 03:
He was the Director of Instrument Products, which included management of the EFA 300, the product at issue here.

[00:18:15] Speaker 03:
He was responsible for sales of instruments, including the EFA 300, the product at issue here.

[00:18:23] Speaker 03:
He was involved in reviewing and approving the English language version of the user manual for the EFA 300.

[00:18:32] Speaker 03:
During his deposition, he demonstrated detailed knowledge of how products are put together for shipping.

[00:18:41] Speaker 04:
He also said that he had no idea if the manual was actually included.

[00:18:46] Speaker 04:
He said their standard practice was to send manuals, but he said he didn't know if this manual was ever sent.

[00:18:51] Speaker 04:
And then he said, but you could have a bill of materials and you never offered to submit one.

[00:18:56] Speaker 03:
Your honor, what he said is that it was the standard practice of the company to distribute a manual with every EFA 300 they sold.

[00:19:09] Speaker 03:
And again, just to help put this in perspective, we're talking about a manual that's over 200 pages long and we're talking about a device that's thousands of dollars in expense and fairly sophisticated electronic equipment.

[00:19:21] Speaker 03:
He said that during his deposition, he said that the packaging was assembled in Germany.

[00:19:29] Speaker 03:
It was put in a box.

[00:19:29] Speaker 03:
There was a bill of materials.

[00:19:31] Speaker 03:
He identified that.

[00:19:33] Speaker 03:
Which you never submitted.

[00:19:34] Speaker 03:
Which we did not submit, but our position is, of course, that we don't believe that that's necessary.

[00:19:41] Speaker 03:
There's a bill of materials that listed all the things that were supposed to be in the box.

[00:19:46] Speaker 03:
After an item was sold, it was shipped to the United States.

[00:19:49] Speaker 03:
to the Narda location on Long Island where Mr. Johnson worked.

[00:19:54] Speaker 04:
But he didn't testify that he ever opened one and found a manual in there.

[00:19:58] Speaker 03:
But he did testify, Your Honor, that there was never a reason to open one.

[00:20:02] Speaker 03:
And the issue, I think, in here, for this point, is what would be an issue

[00:20:12] Speaker 02:
You're arguing what we used to call in law school a negative pregnant.

[00:20:16] Speaker 02:
That is to say that he never received a phone call from a customer saying, where the hell is my instruction manual?

[00:20:24] Speaker 03:
He was never asked, Your Honor, if a customer ever complained that they did not receive a manual.

[00:20:31] Speaker 04:
Why didn't you ask him that?

[00:20:33] Speaker 04:
Here's my problem.

[00:20:35] Speaker 04:
PTAB says we're doing formal proceedings, formal adjudicatory proceedings, even to the point where they say that such a level of formality that they can decide constitutional questions.

[00:20:44] Speaker 04:
And then they say, and they put everybody on notice, that we're going to apply the rules of evidence.

[00:20:49] Speaker 04:
And what you're asking us to do is to apply the rules of evidence more loosely to the PTAB than we would to a district court in these circumstances.

[00:20:57] Speaker 03:
No, Your Honor, I don't believe so.

[00:20:59] Speaker 04:
The burden is on you to establish admissibility, not on them to say, well, you know,

[00:21:04] Speaker 04:
there were more holes.

[00:21:05] Speaker 04:
They pointed out an awful lot of holes in his testimony.

[00:21:08] Speaker 03:
Your Honor, they pointed out items that we could have addressed, but perhaps did not.

[00:21:16] Speaker 04:
You didn't ask to supplementarily address them, did you?

[00:21:19] Speaker 03:
We did not supplement, Your Honor.

[00:21:21] Speaker 03:
The issue is whether what we put forward was sufficient.

[00:21:26] Speaker 03:
The Board found that it was, and this Court will look at what the Board did to determine whether that was an abuse of discretion.

[00:21:33] Speaker 03:
is an abuse of discretion for the board to say, we're going to rely on a person with 30 years of the company who was directly responsible for this product.

[00:21:42] Speaker 04:
But who had no knowledge of the specific facts.

[00:21:45] Speaker 04:
I mean, that's my problem.

[00:21:46] Speaker 03:
Your Honor, he didn't have knowledge of, he didn't watch it go into the box and the board noted that.

[00:21:51] Speaker 03:
He did not watch it go into the box.

[00:21:53] Speaker 03:
He never put it into the box.

[00:21:55] Speaker 03:
He didn't have anything to do with printing it or processing it.

[00:21:59] Speaker 03:
Well, Your Honor, he did approve it.

[00:22:01] Speaker 03:
He did not print it, but he approved the English language version.

[00:22:06] Speaker 04:
So why didn't you get someone who actually could testify to this?

[00:22:09] Speaker 04:
Would you have done this in district court?

[00:22:12] Speaker 03:
Your honor, it depends on what the burden is here.

[00:22:16] Speaker 03:
And if the burden is beyond all doubt, of course we would have done that.

[00:22:20] Speaker 03:
If the burden is beyond a reasonable doubt, of course we would have done that.

[00:22:24] Speaker 03:
But that's not what the burden is here.

[00:22:26] Speaker 03:
And the issue is, L3's position is... The burden is personal knowledge.

[00:22:31] Speaker 03:
...is personal knowledge.

[00:22:32] Speaker 03:
And did Mr. Johnson have personal knowledge?

[00:22:35] Speaker 03:
He says he did.

[00:22:37] Speaker 03:
Everything indicates that he did.

[00:22:38] Speaker 03:
And the attacks of things he didn't do

[00:22:42] Speaker 03:
don't really attack his personal knowledge of what the standard practice was at the company for the dissemination of the manual.

[00:22:51] Speaker 04:
I thought the man was incredibly honest about all the stuff he didn't know.

[00:22:54] Speaker 03:
He was, Your Honor.

[00:22:56] Speaker 04:
Which was everything that would be necessary to establish that it ever was submitted to the public.

[00:23:02] Speaker 03:
Beyond a reasonable doubt, yes.

[00:23:04] Speaker 04:
Not beyond a reasonable doubt.

[00:23:05] Speaker 04:
That's not the standard.

[00:23:07] Speaker 04:
The standard is did he have personal knowledge or did he not?

[00:23:10] Speaker 04:
And he didn't really even claim to have personal knowledge.

[00:23:13] Speaker 04:
He said, I have personal knowledge that we made a manual that I approved the text of.

[00:23:18] Speaker 04:
He didn't have any knowledge about it being printed or shipped or anything.

[00:23:22] Speaker 03:
He had personal knowledge that L3 put a copy of the manual in every box that they shipped that had the EFA 300 in it.

[00:23:32] Speaker 04:
He didn't say that.

[00:23:33] Speaker 03:
He did say that.

[00:23:34] Speaker 03:
He said that in his declaration.

[00:23:36] Speaker 04:
He said that the standard practice was to put a manual with

[00:23:40] Speaker 04:
every product.

[00:23:42] Speaker 04:
But he said he didn't know if it ever actually happened.

[00:23:48] Speaker 03:
Your Honor, that is not what he said that he didn't know whether it actually ever happened.

[00:23:57] Speaker 03:
Sight to the record, please.

[00:23:59] Speaker 03:
Pardon me, Your Honor?

[00:23:59] Speaker 03:
Sight to the record.

[00:24:01] Speaker 03:
But Your Honor, in his declaration, he says... Where are you?

[00:24:06] Speaker 03:
This is in...

[00:24:11] Speaker 03:
His declaration is in the appendix at 1108 through 1111.

[00:24:15] Speaker 03:
I'm looking at 1108.

[00:24:20] Speaker 03:
In paragraph number three, he says that since at least 2002, it has been NARDA standard practice to include a user manual of each device, whether in the United States or around the world.

[00:24:33] Speaker 03:
Since at least 2002, each device sold by NARDA has been delivered with a corresponding user manual.

[00:24:38] Speaker 03:
I'm sorry, but this is his declaration.

[00:24:41] Speaker 03:
Yes, Your Honor.

[00:24:41] Speaker 01:
At 1108?

[00:24:43] Speaker 03:
In the appendix.

[00:24:46] Speaker 01:
No, that's a brief.

[00:24:47] Speaker 01:
That's a brief.

[00:24:48] Speaker 01:
You don't have the right side.

[00:24:49] Speaker 03:
I'm sorry, Your Honor.

[00:24:52] Speaker 03:
I apologize.

[00:25:05] Speaker 03:
It begins at 4136 and goes through 4141.

[00:25:13] Speaker 03:
It's just a couple of pages.

[00:25:18] Speaker 04:
Right, but then you take that declaration and then you put it together with this cross-examination and you see a different picture, right?

[00:25:26] Speaker 03:
Well, Your Honor, what you see is there are particular peripheral things that he does not know.

[00:25:31] Speaker 03:
But those peripheral things do not attack the basic premise

[00:25:35] Speaker 03:
that the standard practice at L3 was to include an EFA manual with every EFA 300 that they sold.

[00:25:46] Speaker 03:
No, he did not see it go into the box.

[00:25:49] Speaker 03:
No, he wasn't the one who put it into the box.

[00:25:52] Speaker 01:
He did state that.

[00:25:57] Speaker 01:
He's worked at this company for 30 years.

[00:26:00] Speaker 01:
He knows that it's the policy of the company to put manuals in the boxes.

[00:26:04] Speaker 01:
He actually looked at the specific language of the specific manual.

[00:26:08] Speaker 01:
And based upon all of that work experience and knowledge of policy, that that's sufficient for the board to find that this is prior art.

[00:26:20] Speaker 02:
Yes, Your Honor, and that's what the board did.

[00:26:22] Speaker 02:
The difference is you're comparing a business practice with a business record.

[00:26:28] Speaker 02:
You don't have a custodian of records to establish a business record, but you have someone with expertise in the area to establish a business practice.

[00:26:36] Speaker 03:
Correct, Your Honor, and I believe that the issue here is the business practice.

[00:26:42] Speaker 01:
You're not trying to get this in under the business records exception.

[00:26:46] Speaker 01:
This is personal knowledge of the company's practices.

[00:26:49] Speaker 03:
Correct, Your Honor.

[00:26:54] Speaker 03:
Okay, I'd like to switch to some of the points that were being made about secondary considerations, if I may.

[00:27:03] Speaker 04:
How can we just ignore copying?

[00:27:05] Speaker 03:
That's pretty powerful evidence, right?

[00:27:07] Speaker 03:
Your Honor, I don't believe the Board did ignore copying.

[00:27:11] Speaker 03:
If we look at... Well, it certainly gave it the back of its hand at the best.

[00:27:17] Speaker 03:
It did, Your Honor.

[00:27:20] Speaker 03:
But it's fairly well settled in this Court that

[00:27:24] Speaker 03:
Evidence of copying alone is equivocal.

[00:27:28] Speaker 03:
And without more, it can be given the back of the hand.

[00:27:31] Speaker 03:
There's nothing wrong with that.

[00:27:33] Speaker 03:
In fact, it can be ignored completely if it's the only evidence of secondary considerations that's offered.

[00:27:40] Speaker 03:
What the board did, and they indicated this in the final decision, is they said that, cite two pages.

[00:27:51] Speaker 03:
Certainly, Your Honor.

[00:27:54] Speaker 03:
Just a moment here.

[00:28:04] Speaker 03:
It's 28.

[00:28:08] Speaker 03:
I believe it is.

[00:28:16] Speaker 03:
And what the board said,

[00:28:23] Speaker 03:
Under the totality of the evidence section, the objective indicia of commercial success and copying weigh only slightly in favor of non-obviousness.

[00:28:43] Speaker 03:
So they did not ignore copying altogether.

[00:28:47] Speaker 03:
They did not, as

[00:28:52] Speaker 03:
This is not a situation as some of the cases that were cited where the board just ignored blocks of evidence.

[00:29:01] Speaker 03:
They spent a lot of time on all of the secondary considerations and gave rulings on all of them.

[00:29:08] Speaker 03:
So I just want to point out a couple of things.

[00:29:14] Speaker 03:
Your Honor is absolutely right in that even with the power survey device

[00:29:21] Speaker 03:
the L3 device, somebody riding along the street, they detect an elevated electric field and that's all they know.

[00:29:31] Speaker 03:
The only way to figure out what's going on is you have to stop the truck, get out and figure out, okay, what's the source and is that source dangerous?

[00:29:44] Speaker 03:
Council did say that there was information that would allow someone to go back later and that is true, but they still have to do the same thing.

[00:29:49] Speaker 03:
The machine itself does not specifically identify the problem at issue.

[00:29:59] Speaker 03:
That's the post detection activity.

[00:30:01] Speaker 03:
The post detection activity is more than just trying to figure out how serious it is.

[00:30:04] Speaker 03:
It's trying to figure out what it is in the first instance.

[00:30:10] Speaker 03:
The second thing, Your Honor, that was pointed out in the opening had to do with failure of others.

[00:30:18] Speaker 03:
and in particular the Voitsberger paper, where the board said that they didn't prove that it was before the priority date.

[00:30:26] Speaker 03:
Even though they said, the board did say that, they nonetheless went on to completely analyze that reference and found that it did not count as a failure of others.

[00:30:36] Speaker 03:
In fact, just the opposite.

[00:30:37] Speaker 03:
It showed that someone else had succeeded, perhaps not as efficiently, but it did not come up as a failure of others.

[00:30:44] Speaker 04:
But my commercial success,

[00:30:45] Speaker 04:
How do you address the argument on the other side that our case is very clear that where the product embodies all of the claims, there has to be a presumption that there is a nexus.

[00:30:58] Speaker 03:
Correct, Your Honor, and that is this piece.

[00:31:01] Speaker 04:
I know that's correct.

[00:31:03] Speaker 03:
Sorry.

[00:31:03] Speaker 04:
Each app didn't say anything about that.

[00:31:06] Speaker 03:
That's what happened here, Your Honor.

[00:31:08] Speaker 04:
They don't say anything about providing a presumption.

[00:31:12] Speaker 03:
I'm sorry.

[00:31:13] Speaker 04:
They actually don't say anything about providing a presumption.

[00:31:16] Speaker 04:
They say that the patent owner had to prove a nexus.

[00:31:20] Speaker 03:
In connection with commercial success, which I believe they found that there was a nexus there, Your Honor, otherwise they wouldn't have considered the commercial success evidence.

[00:31:29] Speaker 03:
They did.

[00:31:30] Speaker 03:
And there was in this case, the expert witness on a power survey side did say that their commercial product was covered by the claims of the patent.

[00:31:39] Speaker 04:
They specifically found that there was no nexus without providing a presumption.

[00:31:46] Speaker 03:
Your Honor, regardless of whether they did or they did not say that there was a nexus, they nonetheless went on and considered what the commercial success evidence was and came to the clear conclusion based on the documents that are before us that are in the record that there was no commercial success, that there were other forces that caused the sales

[00:32:16] Speaker 03:
that were primary in resulting in the sales that the Power Survey made, and that it wasn't due to the features of the invention.

[00:32:29] Speaker 03:
In fact, Your Honor... And you're out of time.

[00:32:31] Speaker 03:
Yeah, I think I am, Your Honor.

[00:32:32] Speaker 03:
I had a little trouble reading the clock here, but thank you.

[00:32:37] Speaker 04:
Since we let him go over a minute, we'll give you two minutes for rebuttal.

[00:32:42] Speaker 00:
I'll endeavor to be shorter than that.

[00:32:45] Speaker 00:
Judge Wallach I think made an astute observation or question when my colleague was presenting and I think it was along the lines that they're relying on Mr. Johnson as a business person to establish a business practice.

[00:32:58] Speaker 00:
I think that's what the board found.

[00:32:59] Speaker 00:
If we look at the final written decision at JA33, they rely on Mr. Johnson's testimony about the standard practices at NARDA because everyone recognized he didn't have the actual knowledge of whether those particular manuals were shipped with those particular products.

[00:33:14] Speaker 00:
What's missing from Mr. Johnson's deck and which didn't come out at the deposition was, was Mr. Johnson the right businessman to make that statement?

[00:33:22] Speaker 00:
He doesn't say in his deposition how he had personal information about the packaging of manuals with the product.

[00:33:33] Speaker 00:
illuminated his deposition was he wasn't even in charge of the packaging of the product.

[00:33:37] Speaker 00:
That happened to Cotton in a way.

[00:33:39] Speaker 01:
The only thing... But that's stuff that might be required if they were trying to get this in under the business practice exception.

[00:33:47] Speaker 01:
If I know that

[00:33:49] Speaker 01:
You know, the people in my chambers do a certain thing because I've laid out informal policies that aren't written down, but I tell them to do them and I'm sure they do them.

[00:33:59] Speaker 01:
Can't I testify to that fact?

[00:34:01] Speaker 01:
And whether that is credible or not is something for the fact finder, but not

[00:34:06] Speaker 01:
an abuse of discretion to allow it as evidence.

[00:34:09] Speaker 00:
I think your Honor's hypothetical is very informative.

[00:34:12] Speaker 00:
You could do that and that would be based on personal knowledge.

[00:34:14] Speaker 00:
We don't have Mr. Johnson saying, I've instructed anyone to do this.

[00:34:18] Speaker 01:
No, but he knows what the company's policy is.

[00:34:20] Speaker 01:
He doesn't have to be the person that actually wrote the policy if he's aware of the policy.

[00:34:26] Speaker 00:
But 602 requires him to say, how does he know?

[00:34:30] Speaker 01:
You couldn't offer literally... He's worked at the company for 30 years.

[00:34:33] Speaker 01:
He's in charge of this project.

[00:34:35] Speaker 01:
He actually looked at the manual and edited it.

[00:34:39] Speaker 01:
I don't know what... Again, maybe he's not credible, but I don't know what...

[00:34:44] Speaker 01:
more he has to do to say he has personal knowledge.

[00:34:47] Speaker 00:
All he has to do is, he literally could say, based on my experience because I oversee this, I instruct, I observed compliance with it, but he doesn't provide any of that testimony.

[00:34:56] Speaker 00:
He simply says, I've worked there, I have a particular job title.

[00:35:00] Speaker 00:
I'm in charge of it.

[00:35:02] Speaker 00:
Well, he says he's in charge of the sales.

[00:35:04] Speaker 00:
And what we learned at his deposition that sales means something very different from sales fulfillment.

[00:35:09] Speaker 00:
And he doesn't participate in the latter.

[00:35:11] Speaker 00:
He approves the language of the document.

[00:35:13] Speaker 00:
He doesn't know how the copyrights apply to it.

[00:35:16] Speaker 00:
He doesn't know the printing of it and any of that.

[00:35:20] Speaker 00:
So it was a very simple thing for L3 to have filled that gap.

[00:35:24] Speaker 00:
And for reasons that are not on this record, they have not explained that.

[00:35:28] Speaker 00:
I've already gone further, longer than I had hoped.

[00:35:30] Speaker 00:
So thank you for your time.