[00:00:00] Speaker 05: The case is number eighteen dash thirteen forty seven, Endotac LLC versus Cook Medical. [00:00:52] Speaker 05: Okay, Mr. Souter. [00:01:05] Speaker 04: Yes sir, thank you. [00:01:06] Speaker 04: Good morning and may it please the court. [00:01:09] Speaker 04: The issue for this court is whether based on the summary judgment record, there is a fact issue as to who was the first to continue of a single sleeve stint. [00:01:18] Speaker 04: Was it Dr. Lee, [00:01:20] Speaker 04: On April 24, 1990, where Dr. Rhodes, the inventor of the patent suit before them, on page 29 and page 30 of Judge McKinney's summary judgment order, which is A52 and 53, Judge McKinney specifically cited to the summary judgment evidence of the three different potential conception dates. [00:01:43] Speaker 04: He cites the Dr. Silver's report and all the evidence submitted. [00:01:47] Speaker 04: He didn't just pay lip service to it. [00:01:50] Speaker 04: He cited different portions of his evidence at different times on page 29 and 30. [00:01:57] Speaker 04: He also cites on page 4 of his opinion the very specific reference in Dr. Silver's report paragraph 40 that dealt with the draft patent application. [00:02:09] Speaker 03: Would these arguments waive? [00:02:10] Speaker 03: Did you waive these arguments? [00:02:11] Speaker 03: Absolutely not, Your Honor. [00:02:13] Speaker 00: Where in your opposition to their summary judgment motion did you explicitly argue for these late March, early April dates? [00:02:22] Speaker 04: On page 23 of our motion, which is A, 30, 40, 21, we say C, exhibit B. Which page? [00:02:31] Speaker 04: It is A, 4021. [00:02:34] Speaker 04: At which volume is that in? [00:02:37] Speaker 04: That I apologize if you do not know, Your Honor. [00:02:42] Speaker 04: And again, Your Honor, there were two patents. [00:02:44] Speaker 04: Wait. [00:02:45] Speaker 04: I'm sorry. [00:02:45] Speaker 05: 4021. [00:02:54] Speaker 00: Wait. [00:02:56] Speaker 00: Yeah, okay. [00:02:56] Speaker 00: This is your response. [00:02:57] Speaker 04: Yes. [00:02:58] Speaker 05: Where does it say that? [00:03:00] Speaker 04: Halfway down, right before subsection B, Lee alleged prior invention, we'd say exhibit B at 32 to 35, exhibit B at 35 to 43. [00:03:11] Speaker 05: You raised it just by citing those portions of the record? [00:03:16] Speaker 04: Yes, Your Honor. [00:03:17] Speaker 04: Given the number of issues that were raised in their summary judgment motion, two patents infringing the record. [00:03:23] Speaker 05: Okay. [00:03:23] Speaker 05: Let's suppose we find that that's inadequate to preserve the issue. [00:03:27] Speaker 05: Is there anything else? [00:03:29] Speaker 05: Yes, Your Honor. [00:03:30] Speaker 05: What way were you preserve the issue as to the March April time period? [00:03:35] Speaker 00: Yes. [00:03:35] Speaker 00: And let me just note that sentence doesn't say anything about March April day. [00:03:39] Speaker 00: It's talking about a December 5, 1989 date, which is a date clearly raised. [00:03:45] Speaker 00: But the district court found at that point, there was no showing that all of the elements of the claim had been. [00:03:54] Speaker 00: So I don't understand how you can argue by using a sentence that references an entirely different conception date and citing the expert report the late March, early April date, which isn't even mentioned in this sentence. [00:04:11] Speaker 04: Your Honor, my response is that Judge McKinney had no problem considering that evidence. [00:04:17] Speaker 04: He, on page 4 of his opinion, which is Appendix 27, he cites to the very specific reference of the March-April date. [00:04:27] Speaker 04: He discusses it in his factual finding. [00:04:29] Speaker 05: He held that the issue wasn't properly preserved, right? [00:04:33] Speaker 04: No. [00:04:33] Speaker 05: As part of the new judge who replaced him held that. [00:04:38] Speaker 04: On a motion for reconsideration, which is a completely different standard, he also said that if the court had considered that evidence, [00:04:45] Speaker 04: it would result in a different finding of his view. [00:04:49] Speaker 04: And the Judge McKinney... No, no, no. [00:04:51] Speaker 05: You're not answering my question. [00:04:53] Speaker 05: On the reconsideration, the district judge said this issue was not properly preserved, right? [00:05:02] Speaker 04: Yes. [00:05:03] Speaker 04: But he ruled on it on the merits anyway. [00:05:06] Speaker 04: And we cite the cases that that is sufficient to preserve appellate issue. [00:05:11] Speaker 04: that if it's raised in a motion for reconsideration and cited on the merits by the judge... Where does he decide it on the merits? [00:05:21] Speaker 05: He says in the statement, in the statement on page 5 of our reply brief. [00:05:26] Speaker 05: Now give us the record record where he ruled on this. [00:05:29] Speaker 05: It is A-7161. [00:05:31] Speaker 04: 7161? [00:05:33] Speaker 05: Yes. [00:05:37] Speaker 04: He says, and this is cited on page 5 of our gray brief, [00:05:41] Speaker 04: Frankly, it looks to me that if the court looked at those paragraphs when deciding the motion, it would appear to support a different argument than the one that conception date was sometime before April 24th. [00:05:51] Speaker 04: The fact of the matter is, Judge McKinney. [00:05:53] Speaker 05: I don't think that's the same thing as deciding the issue. [00:05:56] Speaker 00: Particularly since he goes on and says that argument wasn't presented, but I can see either in the reply brief or the serve reply. [00:06:04] Speaker 04: But Your Honor, we submit that Judge McKinney, the original judge who unfortunately passed away, [00:06:11] Speaker 04: Specifically, if you look at page 29 and 30 of his opinion, he cites to the very evidence. [00:06:18] Speaker 04: Where? [00:06:19] Speaker 04: Show us where that is. [00:06:20] Speaker 05: What pages of the record is that at? [00:06:21] Speaker 04: It is Appendix 52 and Appendix 53. [00:06:27] Speaker 04: The opinion is attached to our blue brief. [00:06:36] Speaker 05: Where does he decide the issue? [00:06:38] Speaker 04: He cites to it. [00:06:40] Speaker 04: on the bottom of page 29, A-52, citing inter alia docket number 179. [00:06:46] Speaker 00: This is the same argument you pointed to us in your brief. [00:06:50] Speaker 00: He's talking about the December 5th date. [00:06:52] Speaker 00: He's saying the December 5th date, which you clearly raised, is not good enough. [00:06:56] Speaker 00: And you're trying to say by citing all the additional pages that that reserves it. [00:07:02] Speaker 00: But it doesn't say anything about specifically that March 25th. [00:07:06] Speaker 00: late March, early April date, does it? [00:07:08] Speaker 04: No, not there, Your Honor. [00:07:11] Speaker 04: On page 4 of his opinion, which is Appendix 27, look at the first paragraph. [00:07:23] Speaker 05: But that doesn't resolve the issue. [00:07:25] Speaker 05: It just describes the facts. [00:07:28] Speaker 05: Yes, your honor. [00:07:28] Speaker 00: That doesn't show anywhere where you argued that those are sufficient to raise it when citing the sickness case out of the sport. [00:07:37] Speaker 00: You don't have. [00:07:37] Speaker 00: Let me just back up. [00:07:39] Speaker 00: You do not have a section in your summary judgment opposition that says the conception date was late March, early April. [00:07:47] Speaker 00: Do you? [00:07:48] Speaker 04: We do not say we do not say that specific thing. [00:07:51] Speaker 00: The only way you can get there is to bootstrap broad citations to an expert report that you are using to argue in favor of the December 89th date. [00:08:02] Speaker 04: No, this is not known, Your Honor. [00:08:03] Speaker 04: I disagree with that. [00:08:04] Speaker 04: These were not broad citations. [00:08:06] Speaker 04: Given the numerous issues that were raised in the summary judgment and our limited time to address two patents, invalidity, infringement, no-willfulness, latches, [00:08:17] Speaker 04: enablement, written description, we had to give a concise roadmap to the court to say here is where the evidence is. [00:08:26] Speaker 04: Your opinion in [00:08:29] Speaker 04: in Cygnus says if the summary judgment record shows that it's cited in the brief or the summary judgment record, not the appellate record, but the summary judgment record, that is sufficient. [00:08:42] Speaker 04: We cite those cases, and we said, Judge, look here. [00:08:45] Speaker 04: We didn't just say, see the evidence, see Dr. Silver's report. [00:08:48] Speaker 04: We said, look at these specific paragraphs, and Judge McKinney did. [00:08:53] Speaker 04: And in fact, Your Honor, in their reply brief on page six, [00:08:56] Speaker 04: which is Appellate Record 6917, Appellees had no problem addressing the other two alternative dates on page six in the text and in a footnote. [00:09:07] Speaker 04: So it was consented to and addressed by the other side. [00:09:11] Speaker 04: They didn't say we waived it in their reply brief. [00:09:13] Speaker 04: The judge waived the evidence and discussed it. [00:09:16] Speaker 04: And it's our position that is squarely before your honors today. [00:09:20] Speaker 04: That is not a waver. [00:09:21] Speaker 04: This is not like the cases they cite. [00:09:22] Speaker 03: I can see how perhaps [00:09:25] Speaker 03: citations to the record may, in certain situations, result in preserving a particular issue. [00:09:33] Speaker 03: But we're talking about conception dates. [00:09:35] Speaker 03: We're talking about specific periods in time. [00:09:39] Speaker 03: And I don't see that there's room in that type of situation for guesswork. [00:09:46] Speaker 03: I mean, the attorney has to argue on the basis of the record those specific dates. [00:09:51] Speaker 03: And that's what seems to be missing here. [00:09:54] Speaker 03: You're citing us to portions of the record, but just citing to the record or a citation by itself doesn't add up or doesn't complete attorney argument, doesn't preserve the issue. [00:10:11] Speaker 04: If you look at the pages, the specific paragraphs, we didn't just say see Dr. Silvers. [00:10:17] Speaker 03: You're not pointing to any part of the record where you have advanced a specific argument. [00:10:24] Speaker 03: As you talk about a roadmap, there's no exit to that roadmap that has these specific dates. [00:10:34] Speaker 04: Your Honor, we believe it does. [00:10:35] Speaker 04: Paragraphs 42, 43, and 44, which are cited three different times by Judge McKinney, says based on this evidence, [00:10:43] Speaker 04: I find December 5th. [00:10:45] Speaker 04: If you add this additional evidence that he discusses and the citation to that, I find this alternatively. [00:10:51] Speaker 04: And then if you add this further evidence, I find this date. [00:10:55] Speaker 04: And we put all three in there. [00:10:57] Speaker 04: Right there. [00:10:57] Speaker 04: And Judge McKinney saw that. [00:11:00] Speaker 04: He addressed paragraphs 42, 43, and 44 by specific reference in his opinion. [00:11:07] Speaker 04: Clearly, the inference is he considered that. [00:11:09] Speaker 05: Inference. [00:11:12] Speaker 05: That's the problem. [00:11:14] Speaker 00: Is there a sentence in his opinion that says, you all have asserted late March, early April as the conception day. [00:11:23] Speaker 00: I reject that. [00:11:25] Speaker 04: No, he does not say that. [00:11:27] Speaker 00: There is a sentence that says you asserted December 5th as a date, and I reject that, right? [00:11:34] Speaker 00: Yes. [00:11:35] Speaker 00: So he clearly was aware of the December 5th allegation, which is, I might be wrong, but whenever you're signing us to this evidence, it's always in the context of that December 5th sentence. [00:11:47] Speaker 04: But Your Honor, his support for that sentence, he should have just said paragraph 42. [00:11:52] Speaker 04: He then goes to paragraph 43 on page, and then he goes to paragraph 44. [00:11:56] Speaker 00: So you're asking us to infer he addressed an argument that you didn't explicitly make, and he didn't explicitly rule against you by reading in a record citation that relates to that argument instead of the December 5th date. [00:12:12] Speaker 04: Yes, Your Honor, because if you look at the totality of the circumstances and his well-reasoned opinion on the facts. [00:12:17] Speaker 03: But the issue is not whether the judge waived the argument. [00:12:21] Speaker 03: It's rather the attorney weighed the argument. [00:12:23] Speaker 04: Yes, and under the sickness case, Your Honor, we submit that we directed the court to the summary judgment record that we submitted at the time. [00:12:33] Speaker 04: If I may, I'll reserve my time rebuttal. [00:12:36] Speaker 04: Okay. [00:12:41] Speaker 05: Mr. Zanfordino. [00:12:45] Speaker 01: I want to get to the question that you all were raising about the summary judgment opposition brief. [00:12:55] Speaker 02: And one of the important things to recognize, as I think you all pointed out, is that nowhere in that brief is there any discussion of any date besides [00:13:10] Speaker 02: Dr. Rhodes' December 5, 1989 preliminary drawings. [00:13:16] Speaker 02: So one of the things that the local rules require, and I think we have that in our appendix at A7173, and I think this was part of what the judge was looking at, Judge Miller, after Judge McKinney passed away, was whether or not the argument had been waived. [00:13:40] Speaker 02: What Local Rule 56.1 in the summary judgment procedure part of the Southern District of Indiana rule says is that a party opposing a summary judgment motion must file a response within so many days. [00:13:54] Speaker 02: And here's the important part. [00:13:55] Speaker 02: The response must include a section labeled Statement of Material Facts that identifies the potentially determinative facts and factual disputes [00:14:07] Speaker 02: that the party contends demonstrate a dispute of fact precluding summary judgment. [00:14:12] Speaker 02: So our motion for summary judgment had a section devoted to a statement of material facts not in dispute, and they were numbered. [00:14:21] Speaker 02: And that's part of the record. [00:14:23] Speaker 02: And Endotach responded to those statement of facts. [00:14:29] Speaker 02: And nowhere in those statement of material facts do they point to anything other than December [00:14:38] Speaker 02: 5th of 1989. [00:14:39] Speaker 00: So I think your friend's argument is, we're citing the expert report regarding the late March, early April activity in our briefs and papers, and the district court sees that and understands that. [00:14:54] Speaker 00: And why else would we be citing that evidence if it were to establish that as a conception date? [00:15:00] Speaker 00: Is there any reason to cite that evidence except as a conception date? [00:15:05] Speaker 02: Well, that's what they thought was Dr. Rhodes' conception date, December 5th of 1989. [00:15:10] Speaker 00: No, I mean... Oh, I'm sorry. [00:15:12] Speaker 00: They also cited the late March or late April evidence. [00:15:16] Speaker 02: Not in their brief or not in their response to the statement of material facts. [00:15:20] Speaker 02: Where you see that... [00:15:22] Speaker 02: is in a declaration by an expert that was submitted. [00:15:26] Speaker 00: Weren't they citing that paragraph of the declaration relating to those dates? [00:15:31] Speaker 00: I'm not trying to trick you here. [00:15:33] Speaker 00: It seems to me that if you're trying to establish December 5th as a date, you not only have to show that it was conceived on December 5th, you have to show you diligently reduce it to practice throughout the period. [00:15:45] Speaker 00: So the other more likely explanation for citation of that record evidence [00:15:49] Speaker 00: is to show that he was diligently pursuant, but not to set it up as a separate independent conception. [00:15:56] Speaker 02: I understand your question, and that's correct. [00:15:58] Speaker 02: If you look at the way this thing was argued before the district court, it's, look, we have everything in this December 5, 1989 document. [00:16:06] Speaker 02: Now, because we had established a prima facie case of invalidity by the fact that Dr. Lee [00:16:15] Speaker 02: filed a patent on April 27th of 1990. [00:16:19] Speaker 02: So he was ahead of Dr. Rhodes' patent by four months. [00:16:22] Speaker 02: That put the burden on them to come forward with evidence that they had an earlier conception date. [00:16:27] Speaker 02: And when you look at what they were arguing, they were essentially saying, look, this thing is established as of December 5th, 1989. [00:16:34] Speaker 02: Now, that's not enough because our application got filed later. [00:16:40] Speaker 02: And so everything after that is, and we [00:16:43] Speaker 02: Besides, we were diligent all the way through August 15th of 1990 when Dr. Rhodes filed his patent. [00:16:50] Speaker 02: So it comes off as an argument of, I've got it by December 5th, and I was just diligent all the way through August 15th of 1990. [00:16:58] Speaker 02: So therefore, I can get ahead of the date that Dr. [00:17:03] Speaker 02: Lee had established at a minimum on April 27th of 1990 when he filed his patent application, which Ender Tatch admits that the Lee patent and the Lee patent application has everything that's in the asserted claims. [00:17:19] Speaker 05: Where do we find in the record the paragraph of the expert declaration that they cited and that we've been talking about? [00:17:31] Speaker 05: And in the district court, they've shown us a sentence which cited some paragraphs from an expert affidavit. [00:17:43] Speaker 05: Which of those paragraphs or where do we find those paragraphs in the record? [00:17:47] Speaker 02: Oh, I see. [00:17:47] Speaker 02: OK. [00:17:48] Speaker 02: So I can point you to those. [00:17:59] Speaker 00: It's up here. [00:18:12] Speaker 05: Are you asking where we can find those documents or where we can... I just want to look at the paragraphs of the expert affidavit or declaration that they cited. [00:18:22] Speaker 02: Got it. [00:18:23] Speaker 02: I understand. [00:18:23] Speaker 02: Okay. [00:18:24] Speaker 02: Give me... I will find that. [00:18:32] Speaker 02: So his declaration is at 8-5-6-5-1 to 70. [00:18:41] Speaker 02: And then I will have to point you to the exact page. [00:18:54] Speaker 02: So if you look, let's start at, for example, 56, 58 of the appendix. [00:19:07] Speaker 02: That's a part of a document. [00:19:08] Speaker 02: I can take you back to 8. [00:19:10] Speaker 02: APPX 5651 just so you can see the 5651 is the declaration of the expert Dr. James Silver. [00:19:18] Speaker 05: Yeah, which paragraphs did they cite in their summary judgment opposition? [00:19:27] Speaker 02: So they cite, well, I'm going to give you the range. [00:19:31] Speaker 02: I'll have to go back and look. [00:19:33] Speaker 02: They started, they started at... [00:19:39] Speaker 05: make this less confusing. [00:19:41] Speaker 05: Where again do we find the reference in their brief? [00:19:44] Speaker 05: What page is that at? [00:19:46] Speaker 01: Okay. [00:19:47] Speaker 01: In their brief? [00:19:49] Speaker 05: Not the brief here, but their brief. [00:19:51] Speaker 05: Below. [00:19:52] Speaker 05: Below. [00:19:53] Speaker 05: Yeah. [00:19:53] Speaker 01: Correct. [00:20:08] Speaker 01: So the summary judgment opposition brief starts at A4050. [00:20:15] Speaker 02: And then you go forward to A4082, 83, and 84. [00:20:32] Speaker 05: Yeah, but there's a particular sentence which we were looking at before. [00:20:38] Speaker 00: I think your friend pointed us to 4082 in the middle of the page. [00:20:45] Speaker 00: Right, right, right. [00:20:46] Speaker 00: Where he talks about he's conceived of the claim that leads as early as December 5th, 1989 and was diligent throughout constructive reduction of practice in August 10th, 1990. [00:20:58] Speaker 02: Right, and the citations below that are where they're contending that they cited to Dr. Silver's declaration [00:21:06] Speaker 02: where he was making an argument about what had happened. [00:21:11] Speaker 05: What they did is they cited here to a range of pages which included a lot of different arguments, one of which related to the December date. [00:21:21] Speaker 02: To the December claim, right. [00:21:22] Speaker 05: They didn't specifically identify the paragraph that talked about March, April. [00:21:27] Speaker 02: No, they did not. [00:21:28] Speaker 02: No, because that was never something that they ever put in their briefs below. [00:21:32] Speaker 02: That was what, so they had filed a motion for reconsideration, [00:21:36] Speaker 02: After Judge McKinney passed away, Judge Miller took the case over. [00:21:40] Speaker 02: They had filed a motion for reconsideration. [00:21:44] Speaker 02: And Judge Miller said, look, I don't see this argument in the summary judgment briefing. [00:21:50] Speaker 02: Yeah, I understand. [00:21:52] Speaker 00: And they, at least the range of paragraphs they've cited, it seems to include an October 89 date around the birth of his child, a December 5, 89 date, a January 90 date. [00:22:04] Speaker 00: It's a range of dates. [00:22:06] Speaker 02: Absolutely. [00:22:08] Speaker 02: It's a range of dates. [00:22:09] Speaker 02: It's just sort of a mishmash of events that occurred. [00:22:14] Speaker 02: And our point is, what they were required to do to antedate our proof, to show that they had an earlier conception, was not just sort of, for lack of a better term, back up the truck and say, hey, here's our conception documents. [00:22:32] Speaker 02: But say, all right, here, here's our two, three, four, five, six conception documents. [00:22:37] Speaker 02: And I'm going to take you to an expert or an inventor either way. [00:22:41] Speaker 02: In this case, the inventor had passed away, so he couldn't testify. [00:22:45] Speaker 02: So they used their expert as a surrogate. [00:22:50] Speaker 02: And even the expert needed to come forward and say, all right, look, here's a document that I think is a conception document. [00:22:59] Speaker 02: or a series of conception documents, right? [00:23:01] Speaker 02: It could be two, three, four, whatever the case may be. [00:23:04] Speaker 02: And be able to say in a declaration, all right, look, here are the claim limitations, A, B, C, D, and E. And here's where I find those claim limitations in the invention disclosure or in the conception documents. [00:23:21] Speaker 02: They never did that. [00:23:23] Speaker 02: They've never tried to do that with any of this. [00:23:26] Speaker 02: Our response in our summary judgment reply was, [00:23:29] Speaker 02: Okay, look. [00:23:32] Speaker 02: You haven't argued anything other than December 5th of 1989? [00:23:36] Speaker 00: Let me ask you this. [00:23:37] Speaker 00: How much do you actually have to do to avoid summary judgment? [00:23:40] Speaker 00: Your statement of material fact here is that you conceived it as at least April 24th, and I think that's right. [00:23:49] Speaker 00: That's the key that we're relying on here. [00:23:51] Speaker 00: If they're disputing that, [00:23:52] Speaker 00: Can't they just come in and say, we conceived of it before April 24th, and here is the document that shows any possible number of prior conception days. [00:24:04] Speaker 00: Why doesn't that create an issue of material fact as to the April 24th date? [00:24:09] Speaker 02: Well, I think once we established a prima facie case of invalidity, then they had the burden of production, right, to come forward and show that there was something that they had beforehand. [00:24:22] Speaker 00: No, I understand that, but this went off on summary judgment, right? [00:24:26] Speaker 00: Right, this is on summary judgment. [00:24:28] Speaker 00: So I'm just a little curious as to how much they had to do to rebut that date. [00:24:34] Speaker 00: Certainly, when you put forth an affidavit or whatever you did for that April 24th, that's enough to... [00:24:42] Speaker 00: to be a credible allegation of material fact. [00:24:45] Speaker 00: It's their responsibility then to provide some evidence to rebut that, that would send it to the jury. [00:24:52] Speaker 00: Why isn't it coming in and saying, we invented it before our April 24th CDN report enough to do that? [00:25:01] Speaker 02: Well, in our brief recite to Corden's case, [00:25:04] Speaker 02: as an example of what one has to do to meet the burden of production. [00:25:08] Speaker 02: And I have to tell you in advance, it's a JMOL case. [00:25:12] Speaker 02: We incorrectly call that a summary judgment case. [00:25:16] Speaker 02: I apologize for that. [00:25:17] Speaker 02: I should have caught that before we filed our brief. [00:25:20] Speaker 02: I caught that this weekend. [00:25:23] Speaker 02: So I can submit a corrected brief if that's necessary. [00:25:27] Speaker 02: It's not a summary judgment case. [00:25:28] Speaker 02: But the Corden's case, [00:25:30] Speaker 02: lays out in the context of a burden of production what, at least we say, one needs to do. [00:25:37] Speaker 02: And this court found that the court in this case found that the district court did not err in finding on JMOL, which the standard is the same as summary judgment, that the other side, the plaintiff, had not proven a conception date that was earlier. [00:25:56] Speaker 05: What it said is you've got to have linking arguments. [00:25:59] Speaker 05: And you've got to link your conclusion to the evidence in the record. [00:26:03] Speaker 05: And the real problem here, even if one gets past the waiver issue that the expert affidavit is conclusory in, it doesn't do that linking even with respect to the March-April date. [00:26:18] Speaker 02: And that's what we responded to in our reply briefing. [00:26:20] Speaker 02: We weren't responding to the argument, okay, you've made the argument. [00:26:23] Speaker 02: Because look, I mean, even though they never made that argument, [00:26:29] Speaker 02: in their brief, as required by the rules, and as Judge Miller found on reconsideration. [00:26:35] Speaker 02: And they've never argued that Judge Miller abused his discretion in finding that they hadn't argued that in their summary judgment motion. [00:26:45] Speaker 02: But we saw it. [00:26:45] Speaker 02: I mean, look, we're going through the entire record, everything that they're citing. [00:26:49] Speaker 02: And we're seeing these sections of this silver declaration. [00:26:53] Speaker 02: And we're seeing him say, OK, look, there's these documents that I see. [00:26:56] Speaker 02: And in my opinion, they prove conception. [00:27:00] Speaker 02: Conception of what? [00:27:02] Speaker 02: Conception of, well, we think the court's case stands for the proposition that when you're facing a burden of production in response to a prima facie case of invalidity, you've got to do more than just have someone say, it's just all there, trust me. [00:27:19] Speaker 02: You've got to put something together. [00:27:21] Speaker 02: You've got to show where those conception documents establish a link between what are in those documents and [00:27:30] Speaker 02: What are in the asserted claims? [00:27:31] Speaker 02: Now, they never done that. [00:27:32] Speaker 02: I mean, their expert at one point said, oh, yeah, I got a claim chart. [00:27:35] Speaker 02: I think he called it B6. [00:27:37] Speaker 02: They'll show you all this. [00:27:38] Speaker 02: They never submitted that chart to the court. [00:27:40] Speaker 03: So you're arguing that in their summary judgment motion, they did not set up and make an argument as to the alternative conception dates. [00:27:49] Speaker 03: That's your argument. [00:27:52] Speaker 02: I see the amount of time. [00:27:54] Speaker 02: Yeah, that's our argument, essentially. [00:27:55] Speaker 03: Well, why then did you respond to that argument in your response? [00:28:01] Speaker 03: I mean, if they're not making the argument, why are you responding to it? [00:28:06] Speaker 03: And your response alone, shouldn't that weigh in our consideration of whether there's waiver or not? [00:28:15] Speaker 02: Well, our response wasn't to the merits of it at all. [00:28:18] Speaker 02: Our response was just, look, OK, we see what you're arguing, December 5th of 1989. [00:28:25] Speaker 05: Where's your response to this? [00:28:27] Speaker 05: Pardon me? [00:28:27] Speaker 05: Where in the record is your response? [00:28:31] Speaker 02: Oh, so that's, I think I have that one, it's 6916. [00:28:44] Speaker 02: Yeah, so 6915 and 6916, right? [00:28:49] Speaker 02: So we're looking at the citations now, okay? [00:28:56] Speaker 02: And if you look at, there's a footnote. [00:29:00] Speaker 02: I mean, we have it as a footnote six on 6916. [00:29:05] Speaker 02: We say Dr. Silver alternatively seeks to establish conception by Dr. Rhodes as of late March or early April of 1990. [00:29:15] Speaker 02: And then we point out how, well, now that's just, he's trying to string along a series of dates that somehow go from December 5th of [00:29:25] Speaker 02: 1989 to April 24th or March or April of 1990 and try and create a range maybe of when the conception happened. [00:29:39] Speaker 02: But at the end we say, I mean, the part is further such unsupported conclusory evidence is insufficient to establish a genuine issue of material fact in a situation where they admit they carry the burden of production. [00:29:55] Speaker 05: Okay. [00:29:56] Speaker 05: Thank you. [00:29:57] Speaker 05: Thank you, Mr. Zantacordino. [00:29:59] Speaker 05: Thank you, Your Honors. [00:30:02] Speaker 05: Mr. Souter? [00:30:16] Speaker 04: Yes, Your Honors. [00:30:17] Speaker 04: Dr. Silver, at paragraphs 35 to 43 of his application of his declaration, which is pages 5659 to 5663, go through in very detailed fashion the evidence that he considered, the drawings, [00:30:35] Speaker 04: the testimony, everything. [00:30:38] Speaker 04: He lays it out in paragraph 43. [00:30:39] Speaker 04: He says, the several draft sketches which were marked up of drafts of the patent application, the audio recording of Dr. Rhodes dictating the first draft patent application with the sites, in conjunction with the corroborating evidence of Mrs. Rhodes and Mr. Dugan, confirm that Dr. Rhodes had conceived of each and every step of the limitations as late March or early April. [00:31:01] Speaker 05: Yeah, but that's a problem under the Corden's case, because it's not. [00:31:05] Speaker 05: being specific as to where each limitation is found. [00:31:10] Speaker 04: That's not the requirement. [00:31:11] Speaker 04: Corden's dealt with the issue of an, of the inventor trying to testify as to his own corroboration of his conception. [00:31:20] Speaker 04: And this Court has held an essential cut on these. [00:31:23] Speaker 05: The case also said you've got to have, you've got to link the expert's conclusion to the particular claim limitations. [00:31:33] Speaker 05: where the evidence supports conception of those particular limitations. [00:31:37] Speaker 05: And that this doesn't do that. [00:31:38] Speaker 04: Absolutely, Your Honor. [00:31:40] Speaker 04: In complex technology, I would agree with you. [00:31:43] Speaker 04: I cite the censure-cut case, the union carbide case, if it's the technology is readily understandable. [00:31:49] Speaker 04: You don't even need expert testing. [00:31:51] Speaker 05: I don't think that these claims are so simple. [00:31:53] Speaker 05: I mean, they are pretty complicated. [00:31:57] Speaker 05: And it's a lot to ask the district court or this court [00:32:02] Speaker 05: to figure out where the limitations are found in the record without an expert roadmap. [00:32:09] Speaker 04: Your Honor, I submit this is simple. [00:32:12] Speaker 04: It's a graph stent on the outside of the periphery. [00:32:16] Speaker 04: But the other point, Your Honor, is Judge McKinney, on the same page of his opinion, rejected our April 24th conception date. [00:32:27] Speaker 04: On page A53, before he discusses December 5th date, [00:32:32] Speaker 04: He says the April 24th date as to conception is of no avail because it's the same date so we lose the tie. [00:32:39] Speaker 04: He considered that date. [00:32:41] Speaker 04: So if he considered anything other than December 5th, it's because he considered these other arguments. [00:32:48] Speaker 04: He considered them. [00:32:49] Speaker 04: He ruled upon him. [00:32:51] Speaker 04: He weighed the evidence. [00:32:52] Speaker 04: So how can that be a waiver? [00:32:54] Speaker 00: I don't understand how that's true. [00:32:56] Speaker 00: He specifically addressed the December 5th date. [00:32:58] Speaker 00: He specifically addressed the April 24th date. [00:33:01] Speaker 00: He did not specifically address any other of the dates propelled by Dr. Silver's affidavit. [00:33:07] Speaker 04: Your Honor, if he addressed the April 24th date as conception, then he considered Dr. Silver's paragraph 44, which says December, late March, [00:33:19] Speaker 04: or April 24th. [00:33:21] Speaker 04: So he considered 1 and 3 in his opinion. [00:33:25] Speaker 00: How did we know he considered 2 if you didn't argue it to him? [00:33:29] Speaker 04: Because he cites to Paragas 42 to 44, and he addresses 42, he addresses 44, and earlier in his opinion he discusses 43. [00:33:40] Speaker 04: So the clear implication is that he carefully considered all of the evidence. [00:33:47] Speaker 04: Your Honor, they addressed it. [00:33:49] Speaker 04: They told Judge McKinney the alternative dates are there in their reply brief. [00:33:54] Speaker 04: And the judge addressed it. [00:33:59] Speaker 04: Okay. [00:33:59] Speaker 04: Mr. Sutter, I think we're out of time. [00:34:01] Speaker 04: Thank you. [00:34:02] Speaker 04: No, no, no, no, no. [00:34:05] Speaker 05: You have to stop. [00:34:06] Speaker 05: Yes, sir. [00:34:07] Speaker 05: Thank you. [00:34:09] Speaker 05: Thank you. [00:34:09] Speaker 05: Thank both counsel. [00:34:10] Speaker 05: The case is submitted. [00:34:25] Speaker 02: Before we begin, I think there's a leak in the cover.