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8-1.

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Pattern knitters versus camstrup.

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Boy, these names are messing me up today.

[00:00:43] Speaker 00:
Okay, Mr. is it Basile?

[00:01:04] Speaker 00:
Basil?

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Basil, you have an E on the end.

[00:01:07] Speaker 02:
I know, it's Sicilian.

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It's my favorite spice, so it works out.

[00:01:37] Speaker 02:
Good morning, may it please the court.

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It's Basil for Apatow My Tours.

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versus Hamstrup.

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The issue when this appeal is very straightforward.

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There are two issues.

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One is the patent owner appellant, after oh my toes believes the board, erred in finding that the patent owners failed to produce sufficient evidence to establish its conception of the invention.

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And then its second error was also finding that patent owners failed to disclose

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Substantial evidence to establish that the inventor Drachman was diligent in reducing the invention to practice.

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The Patent Owner believes that based on the testimony and unrebutted evidence that was submitted during the IPR, there is no real other conclusion than that the Patent Owner sufficiently conceived the invention before the critical date and was diligent in reducing it to practice.

[00:02:33] Speaker 00:
Well, I guess the problem that the board found, the main problem, it seems, was corroboration of the patent owner's claimed conception, especially in light of the fact that what the patent owner produced was emails that didn't even show an attachment or a particular file having been attached, and that all that the board had to rely upon about what was, in fact, sent in those emails was the patent owner's own declaration.

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And so it seemed circular.

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The patent owner is trying to use an email that he printed off his computer to confirm a conception date, but the email itself doesn't actually confirm the conception date.

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It just says something is attached.

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It doesn't identify what's attached.

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And then the patent owner in his declaration tries to tell us what was attached.

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So it seems very circular.

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It's kind of hard for me to understand how the board erred in concluding that that didn't amount to corroboration since the patent owner's declaration

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was necessary to corroborate what was attached to the email, which was supposedly to corroborate his declaration.

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This is a function of the inventor, in this case a sole inventor.

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Yeah, but he sent the email to somebody.

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He could have just gotten an affidavit from that person he sent the email to saying, yes, you sent it, and yes, that was the document attached to it.

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I mean, you're saying a sole inventor.

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I'm sympathetic to sole inventors.

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They're limited resources.

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They're limited understanding of the litigation landscape.

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You know, in this case, all he needed was an affidavit from the guy who received it saying, yep, that's what I got.

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The declaration was given under oath of the inventor that that was his email, that those were attached.

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But that's not enough.

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That's not enough under the corroboration requirement.

[00:04:15] Speaker 02:
Well, it should be enough, especially in an IPR, where- But it's never been enough in any case we've ever had.

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There has to be corroboration of the inventor's claims of conception.

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But those documents do corroborate his testimony.

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No, it's true.

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But they don't, they identify, they say something was attached, but they don't identify what was attached.

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That's the problem.

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But he does state those, that in his records, when he pulled that email, that those documents were attached.

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But that's his own testimony.

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It's the, but the problem is the email itself doesn't corroborate that testimony.

[00:04:52] Speaker 02:
Well, but the single email, well, it doesn't corroborate his, what we're trying to corroborate is that he conceived of his invention.

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prior to the critical date.

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That's what the corroboration is.

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And these are supporting documents.

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And he states that in his declaration.

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And that these documents are submitted to corroborate that testimony.

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Yeah, but that's where your problem lies, because the documents don't, by themselves, corroborate his testimony.

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Well, that individual document doesn't.

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But when you look at the documents as a whole and all this corroborating evidence, which is what the rule of reason is for,

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He had multiple emails.

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He had drawings.

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He testified to the dates of when those emails were sent.

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Those emails being sent established the timeline that showed that he conceived of it before the filing date.

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Well, separate and apart from his declaration, what in those emails identifies what was attached?

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Second email, I think, to Berggart talks about what was attached is identified in the ray line, the subject line of the email.

[00:06:02] Speaker 01:
And it says what?

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It says, in the email itself, he says this is my latest presentation, and he includes in the ray line, UFMX++ Next Generation.

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And how do we know

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Actually, it doesn't say UFM++ next generation.

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It says UFM++.

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Please be precise.

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I'm sorry.

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So how do we know that what is referenced in that ray line is in fact the document that he says in his declaration was attached?

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We don't know that from the document itself.

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We don't know that from the email itself.

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It could be any number of

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presentations regarding.

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But there's no evidence to record there were any other presentations.

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This is the issue.

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By discounting it and not taking its testimony at its face value, which the board says it's doing, then any inventor testimony can always be brought up some question or some issue regarding its authenticity.

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And had that been done in this case, the petitions could have filed a motion to exclude.

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They knew about these documents earlier in the case.

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There was no indication there was any problem with the authenticity of the documents, that they did exist, that he did present them, that he did send those emails, that they were attached.

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He would have had the opportunity to go back and get further information to authenticate those documents, whether it be from some software specialist or expert who could have tied those two documents together if there was going to be an issue with it.

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Or the recipients of the emails.

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Or the recipients of the emails.

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But there was never any doubt raised by the petitioners in this case

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And those documents were produced also.

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They were produced at the initial response phase of this case.

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So years went by, and they never brought that issue up until their briefing.

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But you have the burden of production on proving conception and corroborating that conception, because you're trying to swear behind something.

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So you have that burden of production.

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So it's not their burden.

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to disprove your claim conception and whether or not you corroborate it.

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It's actually your burden to affirmatively prove it and corroborate it.

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And I don't know.

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I mean, corroboration, is that a question of law or fact?

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Do you know?

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I think corroboration is a question of fact, and it's a rule of the reason of analysis.

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And you need to look at all the evidence that's submitted.

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in this particular situation.

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Exactly, but I don't get to look at all the evidence submitted.

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If it's a question of fact, I have to review a board fact-finding for substantial evidence.

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So I don't get to do some sort of de novo review and say, well, I would have gone a different way.

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I have to review this for substantial evidence.

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Did the board have substantial evidence for its determination that this email, standing alone without any evidence of what was in fact attached,

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corroborates his claim of conception.

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And I don't see how I can, under my standard of review, unwind that, even if I would have disagreed with it in the first instance.

[00:09:20] Speaker 02:
Well, I think if you look at the issue here is that email that they're attacking, the one that petitioners argued didn't have an icon that said there was an attachment.

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They point to that as part of the reason why it shouldn't be believed.

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And then the board discounts the entire email

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the statements in the e-mail itself that talk about an attachment being made, that talk about his new meter, that all coincide with the story of the apprenticeship, which is what this is about.

[00:09:46] Speaker 00:
They attack on it by the way.

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Hold on, no.

[00:09:48] Speaker 00:
Let's look at the e-mail, because I just don't see all the stuff that you say is in the e-mail.

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At page 836 is the, I don't know how to say the name of, it's the second e-mail.

[00:10:02] Speaker 02:
Is it the Tannheimer?

[00:10:04] Speaker 00:
Page 836 of the appendix.

[00:10:09] Speaker 01:
the email to Mr. Burngart.

[00:10:15] Speaker 01:
Yes.

[00:10:16] Speaker 00:
So all it says is, here's the presentation I promised.

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I'm also sending my resume and two reports I found online about the market.

[00:10:25] Speaker 00:
Please call if there's anything you need.

[00:10:29] Speaker 02:
And it talks about a water meter.

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The subject is a water meter project.

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Yes.

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It's March 22.

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It's three days before the critical date.

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He files his patent application.

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18, 23 days later.

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So obviously, you know, common sense would say he was probably working on his patent application.

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The only water meter that's in the record is this water meter that ultimately patented.

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He's filed several patent applications on it.

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The problem was the board took those, the things that were missing and used them to completely discount the reference as a whole.

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And it should have been considering everything that was in the reference.

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This is very similar to the NFC case.

[00:11:05] Speaker 00:
But this reference doesn't have anything else in it, nothing personal, but it doesn't say, I have invented a new water meter and I've attached pictures of it for you to look at.

[00:11:15] Speaker 00:
You know, I think it's going to revolutionize the industry.

[00:11:17] Speaker 00:
There's nothing in this email other than the subject line, which says water meter project about what he was sending them.

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It's even referred to here is the presentation.

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I promise.

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That's all it says.

[00:11:28] Speaker 00:
So, I mean, I don't understand what you think the board discounted that is present in the email.

[00:11:34] Speaker 02:
I'm discounting that it failed to read it in conjunction with all the other corroborating evidence.

[00:11:39] Speaker 00:
But there is no other corroborating evidence.

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There's only his declaration.

[00:11:42] Speaker 02:
Well, if you don't believe Mr. Druckmann and you assume he's making this all up, then I agree with you.

[00:11:48] Speaker 02:
This document doesn't show it.

[00:11:49] Speaker 00:
But I guess you can't use his declaration to corroborate his evidence, which is supposed to corroborate his declaration.

[00:11:56] Speaker 02:
Well, who else can corroborate his emails?

[00:11:58] Speaker 00:
The guy who got them.

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Or he could have had an IT person demonstrate what was attached.

[00:12:03] Speaker 02:
And when would we have known to go get another declaration from the person?

[00:12:07] Speaker 00:
When you understood that it's your responsibility to independently corroborate his claimed conception.

[00:12:12] Speaker 02:
Okay.

[00:12:13] Speaker 02:
Your honor, it says 2RB.

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Do you see the 2 line, the heartbeat?

[00:12:18] Speaker 02:
Who's that?

[00:12:19] Speaker 00:
I would assume Mr. Druckmann knows since he sent the email.

[00:12:22] Speaker 02:
Yeah, and he put the declaration.

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Now, did the petitioners challenge that?

[00:12:25] Speaker 02:
No, they didn't challenge that as missing because they knew that person.

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And so the point is, if they were going to have a problem with that, I wouldn't know they were going to have a problem with the two-line either.

[00:12:36] Speaker 02:
They could have disputed that it never went, which they're doing as well.

[00:12:40] Speaker 02:
They could pick anything in these emails to say it's inadequate because it doesn't disclose anything.

[00:12:45] Speaker 00:
I guess here's my problem.

[00:12:45] Speaker 00:
You have the burden of production on this point.

[00:12:49] Speaker 00:
Just like today, the guy didn't show up.

[00:12:51] Speaker 00:
Do you think that means you automatically won?

[00:12:54] Speaker 00:
He decided to waive argument.

[00:12:55] Speaker 00:
Does that mean you automatically win the case?

[00:12:57] Speaker 00:
No, Your Honor.

[00:12:58] Speaker 00:
Of course not.

[00:12:58] Speaker 00:
You have the burden.

[00:13:00] Speaker 00:
So even if they don't show up and object to your evidence and therefore cause you to put on more evidence, you've got the burden of convincing the board that this corroborates your guy's testimony.

[00:13:13] Speaker 00:
The other person doesn't show up, you could still lose.

[00:13:16] Speaker 02:
Understood, Your Honor.

[00:13:19] Speaker 02:
But this wasn't the only corroborating evidence that was submitted.

[00:13:24] Speaker 02:
Also what was submitted was his emails and his attachments.

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other materials that were with this email.

[00:13:33] Speaker 00:
If you want to say, well, there's a time save for rebuttal.

[00:13:36] Speaker 00:
Please continue.

[00:13:39] Speaker 02:
Well, again, I think it's very much in line with the NDP case, NFC case, where the board did not analyze the elements of the corroborating testimony that support the inventor's testimony.

[00:13:53] Speaker 02:
They fail.

[00:13:53] Speaker 02:
And in our brief, we talk about it a little bit.

[00:13:56] Speaker 02:
But the fact that these emails tell the story of his inventorship, these are all happening just weeks before his invention date.

[00:14:05] Speaker 02:
It's the only water meter.

[00:14:07] Speaker 02:
The record is absent of any other water meters or designs or projects that Mr. Druckmann was working on.

[00:14:16] Speaker 02:
They never took Mr. Druckmann's deposition.

[00:14:18] Speaker 02:
They never questioned him on any of this.

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I understand that they are then relying on the fact that they don't think we met our burden.

[00:14:24] Speaker 02:
But we believe we did meet our burden.

[00:14:26] Speaker 01:
Did you submit any other evidence that this is the only project he's working on?

[00:14:32] Speaker 01:
This is the only invention?

[00:14:34] Speaker 01:
This is the only disclosure material for the UFM++ project?

[00:14:40] Speaker 02:
Well, he had attached to this email was his PowerPoint presentation, which talks about his next generation flow meter.

[00:14:47] Speaker 02:
And then in that reference, it talks about his one device.

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and how its patentable subject matter is for new patentable electronic inventions in addition to a completely new mechanical design.

[00:15:04] Speaker 02:
That's at appendix 814.

[00:15:06] Speaker 02:
This PowerPoint has the drawing of the water meter device.

[00:15:13] Speaker 02:
One of his drawings that predates is mentioned on appendix 815.

[00:15:17] Speaker 01:
And I mean, the point I'm getting at is that you're contending that

[00:15:23] Speaker 01:
There was only one UFM++ presentation.

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And therefore, when the email says here's the water project UFM++ presentation, that had to be it.

[00:15:36] Speaker 01:
So I'm asking you, what evidence do you have that that was the only presentation?

[00:15:41] Speaker 01:
That's the only evidence that's in the record.

[00:15:44] Speaker 01:
But that doesn't mean that there isn't other evidence.

[00:15:48] Speaker 01:
That doesn't mean that there weren't other

[00:15:50] Speaker 02:
Well, I think it does, Your Honor.

[00:15:52] Speaker 02:
I mean, if they're going to doubt everything he says, they have to point to something, the petitioner.

[00:15:59] Speaker 02:
They have to point to something that said, these emails, this is the problem, as it said in the NFC case.

[00:16:05] Speaker 01:
It begs more questions.

[00:16:06] Speaker 01:
He had 20 different disclosure documents, and he submitted only one.

[00:16:13] Speaker 01:
You're arguing, you're saying that that proves that that's the only one that existed?

[00:16:17] Speaker 02:
I'm saying the record that was before the board and the record that's before you, this is the only device he was working on.

[00:16:24] Speaker 01:
Yeah, that doesn't mean there aren't 20 others in the closet someplace.

[00:16:28] Speaker 02:
There's no evidence.

[00:16:29] Speaker 02:
But that's, again, you're just speculating on things outside the record, and that's the mistake the board made.

[00:16:34] Speaker 02:
This is about the inventor's testimony and how he came to invent it.

[00:16:38] Speaker 02:
And again, it's your burden.

[00:16:41] Speaker 01:
Your burden showed that that's the only one.

[00:16:45] Speaker 01:
It's not the board's burden or your adversary's burden to prove otherwise.

[00:16:48] Speaker 02:
Well, but see, adversary's burden established a record, and they shouldn't be able to just create innuendo and speculation on what might be missing in order to have the board discount particular pieces of corroborating evidence.

[00:17:04] Speaker 02:
I mean, all the corroborating evidence that was submitted all supports the Testimonious Declaration.

[00:17:09] Speaker 02:
And if the board, as it says it was going to do, takes all his evidence as true, all his testimony as true, it's clear that he had a full understanding of his invention, the full conception of his invention, based on the mechanic seven drawings prior to the critical date, and that he worked diligently to file the patent applications.

[00:17:32] Speaker 02:
That's what the record shows.

[00:17:34] Speaker 00:
OK.

[00:17:34] Speaker 00:
Thank you, Mr. Basel.

[00:17:36] Speaker 00:
Your case is taken under submission.

[00:17:38] Speaker 02:
Thank you.

[00:17:39] Speaker 00:
Our third case for today is 2 0 1 7 dash 1 7 1 9, endo-pharmaceuticals.