[00:00:00] Speaker 02: Let's get up here. [00:00:00] Speaker 02: I want to make a suggestion to them. [00:00:10] Speaker 02: Now, I have a vague recollection that we got some sort of a motion to consolidate the argument, but maybe I'm confused now with the other case. [00:00:17] Speaker 02: It seems to the panel, having gone through the briefing now and had an opportunity, that it would make more sense to just sort of consolidate the purposes of our detective. [00:00:26] Speaker 02: And then we realized there might be some distinctions between the cases and [00:00:30] Speaker 02: You're free, and we'd like you to highlight that and to tell us which case you're talking about. [00:00:35] Speaker 02: But it seems to me it makes more sense than having you pop up and down for different cases, given the overlapping issues. [00:00:42] Speaker 02: So are we all amenable to that? [00:00:44] Speaker 04: Yes, Your Honor. [00:00:45] Speaker 02: All right. [00:00:45] Speaker 02: And we'll give 20 minutes to aside if that's necessary. [00:00:49] Speaker 02: I'm sorry. [00:00:49] Speaker 02: How much is the time? [00:00:51] Speaker 02: 20 minutes. [00:00:52] Speaker 02: But if we have questions, you're not going to be cheated out of time you would otherwise have if that is worthwhile spent. [00:00:59] Speaker 02: So please proceed. [00:01:11] Speaker 03: We make a virus that helps cells to express interferon and interferon helps the human body to combat cancers. [00:01:22] Speaker 03: We gave this virus to some professors at the University of Pennsylvania. [00:01:26] Speaker 03: They're brilliant scientists, very good clinicians. [00:01:29] Speaker 03: I'm sorry, I'm sorry. [00:01:31] Speaker 03: We gave our virus to some professors at the University of Pennsylvania Medical School. [00:01:35] Speaker 03: They're brilliant guys, very creative. [00:01:37] Speaker 03: They're not really good at sort of administrative paperwork. [00:01:40] Speaker 03: When we gave the virus to them, they promised that they would, before publishing, they would tell us, before publishing, so we could file patents on it, [00:01:48] Speaker 03: They go and do their work, and we meet them later on, and we ask them how their work is going, and they say, great news, we got an article published in the Journal of Thoracic Surgery. [00:02:00] Speaker 03: And as a patent attorney, of course, my heart was broken because I knew that all of our patent rights outside the United States were irrevocably destroyed. [00:02:09] Speaker 03: I looked at the article, however, and I see that the article was published. [00:02:13] Speaker 03: What had happened, apparently, is the professors [00:02:17] Speaker 03: got the results, wrote a draft manuscript, sent it into the journal. [00:02:22] Speaker 03: The journal looked at it for a couple weeks, said, hey, this is actually, it's newsworthy. [00:02:27] Speaker 03: We want to run this story. [00:02:29] Speaker 03: So they accepted it for publication. [00:02:31] Speaker 03: Then the journal sent the manuscript out for peer review, which is normal for scientific publications. [00:02:39] Speaker 03: It goes through peer review for a couple months and then is published, everybody agrees, in the hard copy in the December [00:02:48] Speaker 03: Now the dispute here is when we look at the patent office the examiner noted that on the first page of the article it says in the bottom of the left hand column it says published in press in June. [00:03:04] Speaker 03: If this article was published in press in June it does qualify as prior art under 102B. [00:03:10] Speaker 03: So the examiner and I both make a mad rush to try and find that June manuscript [00:03:17] Speaker 03: The examiner looked in the National Library of Medicine, as did I. Neither of us could find it there. [00:03:22] Speaker 03: The examiner and I both looked on Google Scholar. [00:03:24] Speaker 03: The examiner and I both looked on the publisher's website and couldn't find it there. [00:03:29] Speaker 03: I called up the publisher to say, hey, I need a copy of this June manuscript to see if it, in fact, teaches everything that my patent covers. [00:03:37] Speaker 03: They don't have a record of that manuscript. [00:03:40] Speaker 03: And the examiner, I don't know if he called the publisher himself, but he's a very thorough guy, and I wouldn't [00:03:46] Speaker 03: be surprised if he said that, yes, he did the same thing that I did. [00:03:50] Speaker 03: Anyway, we have a December publication that says that something was published in June, but nobody can find the June thing. [00:04:01] Speaker 03: And so my suspicion is that all that was published in June was not the full manuscript. [00:04:06] Speaker 03: It was merely the abstract, which is typical in, or it used to be typical in scientific publishing. [00:04:13] Speaker 03: You'd publish the abstract to sort of build [00:04:16] Speaker 01: reader interest in a significant upcoming article, but you wouldn't... Did the publisher, when you contacted the publisher, say that the article was not published in June? [00:04:29] Speaker 03: They said they had no record of that June manuscript, the publication of it. [00:04:36] Speaker 01: The notation was incorrect. [00:04:38] Speaker 01: They just didn't have a record of it. [00:04:41] Speaker 03: She didn't have a copy of it. [00:04:43] Speaker 03: And she didn't have either a copy of the publication guidelines from seven years ago. [00:04:51] Speaker 03: Today, if we look on the publisher's website, the publisher's guidelines say you send in a manuscript and they immediately put it on their website within 24 hours. [00:05:00] Speaker 03: But she said that she didn't even have the copy of what the standard business practice was seven years ago. [00:05:05] Speaker 03: So we don't know. [00:05:08] Speaker 01: She didn't say it was not published. [00:05:10] Speaker 03: Well, she said she didn't have a copy of it. [00:05:13] Speaker 01: That's a different question, though. [00:05:14] Speaker 03: That's a different question, yes. [00:05:18] Speaker 02: This is a factual question, right? [00:05:22] Speaker 02: The board made certain findings, so it's a matter of our looking at the findings and what was on each side of the ledger, including whether there's enough to establish clear error. [00:05:32] Speaker 02: So you've got, so let's talk a little about the evidence. [00:05:37] Speaker 02: You've got Sternum making a statement, right? [00:05:40] Speaker 02: He was saying this was available. [00:05:42] Speaker 02: No? [00:05:43] Speaker 03: The publisher, the publisher said that they published in press at a certain website. [00:05:50] Speaker 03: And, and on the website, there's only the December or it's actually in November PDF file, not a June file. [00:06:01] Speaker 02: I thought Sherman made some statement about the online publication that was available before the critical day. [00:06:10] Speaker 03: This is in Appendix 32 at the bottom. [00:06:15] Speaker 03: I'm sorry, which? [00:06:18] Speaker 01: That's the published article. [00:06:22] Speaker 03: I've kept the same number in both cases. [00:06:25] Speaker 03: Give it to me again. [00:06:26] Speaker 03: So it's Appendix 32 in the bottom. [00:06:31] Speaker 03: published in press, but this is actually not Sturman. [00:06:34] Speaker 03: Sturman is a, he's a surgeon at the University of Pennsylvania. [00:06:37] Speaker 03: So this is the Journal of Thoracic Medicine is saying. [00:06:40] Speaker 03: This is the publisher actually saying this. [00:06:44] Speaker 03: And the frustrating thing about that is the article says published in press, but no one can actually find that alleged publication. [00:06:51] Speaker 03: And you would think that with a article this significant, with a journal this prestigious, that somebody somewhere [00:07:00] Speaker 03: would have catalogued it, even if it was just a rough manuscript. [00:07:08] Speaker 02: Well, okay, so what do you think the rules are? [00:07:11] Speaker 02: I mean, the federal rules of evidence don't apply. [00:07:13] Speaker 02: You've got this in a printed thing, and it says this was available and published on a certain date. [00:07:19] Speaker 02: Yes. [00:07:19] Speaker 02: Do you agree the burden would shift to you to establish that it wasn't? [00:07:24] Speaker 02: Is this sufficient to make a prima facie case that it was published? [00:07:28] Speaker 02: The assumption is [00:07:30] Speaker 02: There's nothing to suggest that we would not believe what we read in this publication. [00:07:34] Speaker 02: It's trustworthy and reliable if it appears. [00:07:37] Speaker 02: That's the assumption we can all start with. [00:07:40] Speaker 02: So what do you give us to undermine that other than there's nothing more behind this to prove that it happened? [00:07:47] Speaker 03: Because the Administrative Procedure Act requires any federal agency, not merely the Patent Office, any federal agency cannot take action unless they have [00:07:58] Speaker 03: substantial evidence to support that action. [00:08:01] Speaker 03: And here, nobody anywhere has evidence of that manuscript that was allegedly published. [00:08:08] Speaker 03: And the fact that I can't find it and the examiner can't find it implies that regardless of what the December article says, the inability of anybody to find the alleged June manuscript tells me that it doesn't exist. [00:08:34] Speaker 01: But I think the critical question is the examiner is relying on the article itself, the published article that appears in your appendix at 32. [00:08:45] Speaker 01: The examiner's position is that that article says on its face that it was originally published on June 3, 2011. [00:09:00] Speaker 01: So the Patent Office is basically saying that's [00:09:03] Speaker 01: the prima facie case that's necessary to establish that reference as a 102b piece of prior art. [00:09:12] Speaker 01: Then it would seem to me the burden shifts to you to disprove that date. [00:09:20] Speaker 01: And it seems to me you've fallen short on disproving that date. [00:09:25] Speaker 01: You haven't rebutted the prima facie case because you haven't established that on June [00:09:32] Speaker 01: 2011, this article was not published. [00:09:36] Speaker 03: Two things. [00:09:38] Speaker 03: Second, it's impossible to prove a negative. [00:09:40] Speaker 03: I can't give you an article if it wasn't published. [00:09:43] Speaker 01: If the publisher had said, I don't care what that notice says, we never published anything on that date, that would have done it. [00:09:50] Speaker 03: OK. [00:09:51] Speaker 03: First, the patent office, the Board of Appeals, said we were actually talking about two different documents. [00:09:58] Speaker 03: We were talking about a December [00:10:01] Speaker 01: publication and a June manuscript, and that is... I don't think that's what the Patent Office is arguing. [00:10:10] Speaker 01: The Patent Office is saying there's only one piece of prior art in question here. [00:10:16] Speaker 01: The only issue is what the date is, and the piece of prior art on its face has a June 11 date [00:10:24] Speaker 01: and that's what the Patent Office is relying on. [00:10:28] Speaker 03: The Board of Patent Appeals, this is Appendix 6 in the second appeal, 18-1088, talks about, we appear to have confused the PDF available today, which is the June document. [00:10:41] Speaker 03: Can you tell us when the transcript is? [00:10:44] Speaker 03: Yes, this is the second appeal, 18-1088, Appendix 6. [00:10:52] Speaker 00: Was there any [00:10:54] Speaker 00: evidence showing the changes that were made from the initial placing? [00:11:01] Speaker 03: No, there's none. [00:11:02] Speaker 03: That's my frustration, because I'd love to be able to give you a copy of the manuscript published in June, or allegedly published in June, and say, here's what was added during peer review, here's what was changed during peer review, and so the June manuscript doesn't anticipate because of these changes. [00:11:20] Speaker 03: I can't do that because no one has [00:11:23] Speaker 03: That manuscript is unavailable to anybody. [00:11:25] Speaker 03: So I can't tell you how the manuscript was changed during peer review. [00:11:34] Speaker 00: This is difficult. [00:11:37] Speaker 00: If in fact there were standard routine editing, if there was public notice that this information is out, it was, then it disappears. [00:11:49] Speaker 00: and can't be retrieved, what's retrieved is something else, which may or may not be substantially identical. [00:11:58] Speaker 00: Exactly. [00:11:58] Speaker 00: But more likely than not, it looks as if it's the same article edited a little bit. [00:12:06] Speaker 03: I would hesitate to jump to that conclusion only because it took six months for peer review to be complete. [00:12:13] Speaker 03: The article was accepted in the end of May, I believe, and it didn't actually get put into [00:12:20] Speaker 03: PDF format to be typeset until Thanksgiving day of, in November of 2013. [00:12:27] Speaker 02: Yeah, but didn't, I mean, but if you look at the record, and I'm not sure whether this is the examiner or the board itself, but they refer to the fact that, I guess, Stern says it was accepted in final form at May 30th, 2011. [00:12:40] Speaker 02: You're not disputing that. [00:12:42] Speaker 02: And then there's these manuscript guidelines that no one is also disputing. [00:12:46] Speaker 02: that the publisher guidelines state, manuscripts accepted for publication will immediately, within 48 hours of accepted, be published online. [00:13:00] Speaker 02: So it seems that this was following regular order. [00:13:04] Speaker 02: So you've got this other [00:13:06] Speaker 02: bit of information. [00:13:07] Speaker 02: It's not just the statement that he submitted on a day, but it seems like routine practice means it is going to be available all the time. [00:13:14] Speaker 03: Those guidelines are from today's, they're today's guidelines. [00:13:18] Speaker 03: They're not the guidelines from seven years ago. [00:13:21] Speaker 03: We don't have any evidence of what the guidelines were seven years ago. [00:13:25] Speaker 03: They're not archived. [00:13:27] Speaker 03: I can't get them from saved copies of the publisher's website. [00:13:32] Speaker 03: The publisher doesn't have, I call the publisher and the girl I talk to doesn't have them. [00:13:36] Speaker 03: So we don't know what their guidelines were seven years ago. [00:13:38] Speaker 03: What I can say is publishing today is a different animal than it was seven years ago. [00:13:43] Speaker 03: The news today travels much faster. [00:13:46] Speaker 03: And in the scientific community, there is a much greater urgency to publish even imperfect results fast as compared to seven years ago when before the internet was as [00:14:05] Speaker 03: pervasive as it is now. [00:14:07] Speaker 03: Seven years ago, the scientific publication had a more modulated mechanism for getting the peer review done and getting it done right before the article is released. [00:14:20] Speaker 02: Well, that might be very persuasive, if not for the fact that the article itself refers to its publication on June 3rd, 20th. [00:14:27] Speaker 02: So we're working backwards from that to see what kind of makes that make sense. [00:14:32] Speaker 02: But I appreciate your comment. [00:14:34] Speaker 02: Anything else? [00:14:35] Speaker 03: Any other questions? [00:14:39] Speaker 02: Thank you. [00:14:51] Speaker 04: May it please the court. [00:14:52] Speaker 04: The question in both cases is whether Sturman was publicly accessible more than one year prior to the critical date. [00:14:58] Speaker 04: As the court has already acknowledged, Sturman on its face establishes that it was published in press, i.e. [00:15:04] Speaker 04: online. [00:15:05] Speaker 04: on June 3rd, 2011. [00:15:06] Speaker 02: But there were a lot of things published and printed. [00:15:11] Speaker 02: So why, in order to establish what Judge Lynn referred to as kind of a prima facie case, why isn't it probative that it wasn't available when they searched it? [00:15:21] Speaker 02: Nobody can find it. [00:15:22] Speaker 04: Yes, you're right. [00:15:23] Speaker 04: I mean, I think that that reflects a practical reality of patent examination, which is that they are looking at something after the fact. [00:15:32] Speaker 04: The examiner found [00:15:34] Speaker 04: the reference. [00:15:35] Speaker 04: And I want to be clear for one second here about the distinction between the two cases. [00:15:39] Speaker 04: So we have two appeals. [00:15:41] Speaker 04: 2244 involves the 399 application. [00:15:45] Speaker 04: Is that the parent? [00:15:46] Speaker 04: That is actually the child. [00:15:47] Speaker 04: The child was examined more quickly than the parent because the child was on track one. [00:15:51] Speaker 04: But that's the first case that came on appeal. [00:15:54] Speaker 04: And in that case, the only evidence in the administrative record is the article itself. [00:15:59] Speaker 04: There is no other evidence. [00:16:00] Speaker 04: The applicants in that [00:16:02] Speaker 04: application did not put in any other evidence. [00:16:04] Speaker 04: So I just want to be clear about what the evidentiary record is. [00:16:07] Speaker 04: And so in that case, we have the prima facie case established by the article. [00:16:12] Speaker 04: The article says it was published in press. [00:16:14] Speaker 04: The full text article says it was published in press on June 3rd. [00:16:17] Speaker 04: And the article also reflects that there was a peer review time because it was accepted in manuscript form on March 28th and accepted in final form on May 30th. [00:16:27] Speaker 04: There's some additional evidence that the appellants put in [00:16:32] Speaker 04: in the 1088 appeal and the 202 application. [00:16:37] Speaker 04: And the examiner then addressed that additional evidence. [00:16:41] Speaker 04: There was some evidence about the particular PDF that's available at the DOI, at the website that links to the DOI. [00:16:49] Speaker 04: And the examiner then found the publisher's guidelines, which are entirely consistent with the information that is printed on Sturman. [00:16:59] Speaker 04: So although we don't have the 2011 [00:17:03] Speaker 04: guidelines. [00:17:03] Speaker 04: We do have information on Sturman that's consistent with the process that's reflected today. [00:17:08] Speaker 04: And I did want to make one additional point, which is that my friend mentioned a fair amount of facts here that aren't in the record and alluded to the fact that no one was able to find the Sturman reference in prior form, but it also sounded like from what he was discussing that [00:17:25] Speaker 04: they are in touch with Sturman. [00:17:27] Speaker 04: And there was no reference to reaching out to Sturman for that manuscript form. [00:17:30] Speaker 04: And I want to be clear that that is not the examiner's burden. [00:17:32] Speaker 04: The examiner made the prima facie case here, but I just wanted to make that point of clarification. [00:17:37] Speaker 04: It's unclear what exactly wasn't what they weren't able to find. [00:17:41] Speaker 02: Well, there's a statement from Sturman in the record now, or is that just what's in the publication? [00:17:47] Speaker 04: I believe that's just in the publication, yes. [00:17:49] Speaker 04: And unless the court has any further questions. [00:17:52] Speaker 00: Well, the only troubling question [00:17:55] Speaker 00: How can something be a printed publication if it's disappeared? [00:17:59] Speaker 00: No one can retrieve it. [00:18:02] Speaker 00: It's gone. [00:18:03] Speaker 00: Perhaps we'll assume it could have been retrieved in those first six months. [00:18:08] Speaker 00: We don't know. [00:18:09] Speaker 00: We don't have a printed copy. [00:18:11] Speaker 00: The office didn't produce a printed copy. [00:18:14] Speaker 00: Neither did anyone else. [00:18:16] Speaker 00: Changes may or may not have been made. [00:18:19] Speaker 00: But it's gone. [00:18:21] Speaker 00: The idea, the whole principle of [00:18:24] Speaker 00: publications of prior art is that this is what the public, the interested public, the concerned public, refers to, can rely on, can find, and it's gone. [00:18:37] Speaker 04: Yes, I would say that it's not gone. [00:18:40] Speaker 04: We have the printed publication here. [00:18:42] Speaker 04: And we also have a reliable statement that it was available. [00:18:46] Speaker 04: So there's two questions. [00:18:47] Speaker 04: What is the printed publication and when was it publicly accessible? [00:18:50] Speaker 00: Someone said this is available. [00:18:52] Speaker 00: They said this was put on the internet. [00:18:57] Speaker 00: But it's gone. [00:18:58] Speaker 00: You can't find it. [00:18:59] Speaker 00: You might have been able to find it earlier. [00:19:01] Speaker 00: We don't know. [00:19:02] Speaker 00: You can't find it now. [00:19:04] Speaker 00: It's disappeared. [00:19:05] Speaker 04: Well, I think that unless there was evidence that established that there was some type of material change, and there isn't in this case, and in fact all the evidence establishes that at most there might have been copying, you know, copy-editing types of changes, if the information was available in a printed publication as of... [00:19:23] Speaker 00: The publisher says, I put this online. [00:19:27] Speaker 00: No evidence, no proof, no nothing. [00:19:30] Speaker 00: Nobody said that they found it, or saw it, or read it, or relied on it. [00:19:37] Speaker 00: And if you go online and follow that instruction, which was printed by the publisher, you get something with a different date. [00:19:47] Speaker 04: Well, the PDF, the final form, had a different date. [00:19:52] Speaker 04: We're not disputing that. [00:19:53] Speaker 04: The printed publication itself also reflects that it has a publication date of June 3rd. [00:19:58] Speaker 04: And this is very similar to the Epstein case in which this court found that abstracts, which themselves were not identified as prior art that reflected dates of availability for on sale or public availability, that that was reliable evidence. [00:20:12] Speaker 00: This wasn't printed. [00:20:13] Speaker 00: I mean, if you use the word printed as one ordinarily reads it, [00:20:17] Speaker 00: wasn't printed. [00:20:18] Speaker 00: It's on the cloud someplace. [00:20:20] Speaker 04: Well, it was a PDF. [00:20:21] Speaker 04: It was a printed document. [00:20:22] Speaker 04: It was available in written form. [00:20:24] Speaker 04: I don't think that there's a dispute here that this was a printed publication. [00:20:28] Speaker 00: But you have to show it. [00:20:29] Speaker 00: You have to find it somewhere. [00:20:31] Speaker 00: The theory of prior art is that this is information that the public relies on, but it's disappeared. [00:20:39] Speaker 04: Well, again, Your Honor, I would maintain that it hasn't disappeared. [00:20:41] Speaker 04: And I would also point to the public's guidelines that say [00:20:45] Speaker 04: that when articles are published in press, they are available on the website in full, and that they are searchable, so they're accessible, so that someone who is interested in this subject matter would be able to find the article. [00:21:00] Speaker 00: How do you know what the content is if you can't find it? [00:21:04] Speaker 00: I mean, now we have an important discussion, a debate of validity and a lot of other things. [00:21:11] Speaker 00: So the question is, what is the prior art? [00:21:15] Speaker 00: And it isn't there. [00:21:17] Speaker 00: We don't know what's in that publication. [00:21:19] Speaker 04: Well, again, Your Honor, I would say that we do because we have the full press article today. [00:21:23] Speaker 04: And I'd also analogize this to editions of books, right? [00:21:27] Speaker 04: There may be slight changes in books, editions, but it would certainly be proper to rely on the reference to an earlier edition in the book to say that the information in a printed publication was available. [00:21:41] Speaker 04: Because it's not printed. [00:21:42] Speaker 00: I mean, it's digital. [00:21:45] Speaker 00: No point in saying it's a printed publication because we don't have it. [00:21:49] Speaker 00: It was never printed. [00:21:51] Speaker 00: It was placed on the internet. [00:21:53] Speaker 04: Well, I don't understand that there to be a dispute about the definition of printed here, that an internet source couldn't qualify as something that was printed because that is not an argument that appellants have raised. [00:22:09] Speaker 00: The complication really arises in what should the rule be [00:22:14] Speaker 00: in these days of immediate communication via the cloud. [00:22:21] Speaker 00: Certainly, it is not technically printed. [00:22:25] Speaker 04: Well, and I think, again, the question here is, is there prior art that was available one year prior to the critical date that disclosed all of the claims here? [00:22:38] Speaker 04: And there's no dispute as to Sturman [00:22:43] Speaker 04: disclosing all of the elements of the claims and so the question is just was it publicly accessible more than one year prior to the critical date and the government, excuse me, the director maintains that the office made out the prima facie case and when additional evidence was introduced that the board found as a factual matter that the evidence as a whole showed that this printed publication was available more than one year prior to the critical date. [00:23:12] Speaker 01: Is there any dispute over whether the statement originally published in press, et cetera, et cetera, June 3rd, 2011, that appears at the bottom of Appendix 32? [00:23:25] Speaker 01: Is there any dispute over whether that statement was made by the publishing company or simply by the author as part of the manuscript? [00:23:36] Speaker 04: I don't understand there to be a dispute. [00:23:38] Speaker 04: I understand that to be [00:23:41] Speaker 04: by the publisher, but I don't understand there to be dispute. [00:23:45] Speaker 04: And I believe my friend said that. [00:23:46] Speaker 01: Would it make a difference? [00:23:49] Speaker 04: I don't know that it would make a difference. [00:23:51] Speaker 04: It's not something that I've considered. [00:23:52] Speaker 04: And there's no question here. [00:23:54] Speaker 04: I don't even think there's a question about reliability. [00:23:57] Speaker 04: I think there's a question, maybe, perhaps. [00:23:58] Speaker 01: It seems it might make a difference. [00:24:00] Speaker 01: If the publisher is putting the date on it, then it has sort of all of the normal attributes of verifying the date [00:24:11] Speaker 01: as opposed to a statement that's contained in the abstract by the author. [00:24:15] Speaker 04: I see your point. [00:24:16] Speaker 04: And I understand this to be made by the publisher. [00:24:18] Speaker 01: And I would also point out that the... Would be unusual if it was otherwise. [00:24:21] Speaker 04: That's right. [00:24:22] Speaker 04: And the digital object identifier, which is in that same statement, is something that has to be updated by the publisher. [00:24:30] Speaker 01: So that's something that I understand the publisher... So it wouldn't make sense for the author to put that in there. [00:24:35] Speaker 01: That's right, Your Honor. [00:24:36] Speaker 00: I know the problem, still worrying about this scientific article, [00:24:41] Speaker 00: is, by standard rules, a reference on the date that it's published. [00:24:46] Speaker 00: But all that happens in between, the peer review, the circulation, the amendments, and so on, are not prior art as far as the rest of the world is concerned. [00:24:58] Speaker 00: Now here we have a publisher who, in public scientific interests, undoubtedly, when an article is submitted to that journal, [00:25:10] Speaker 00: puts it on the internet. [00:25:11] Speaker 00: It may never achieve scientific publication in the routine, formal manner. [00:25:19] Speaker 00: So why is this different from whatever other internal circulation, I'm thinking particularly of peer review, where a lot of people may see the content of the scientific article? [00:25:34] Speaker 00: Why is this different when today's technology [00:25:38] Speaker 00: allows a broader audience to the subject matter that's just being considered for publication. [00:25:46] Speaker 04: So this was not, the June 3rd date was not the date at which it was being considered for publication. [00:25:51] Speaker 04: That was the prior March 28th date. [00:25:54] Speaker 04: The manuscript was submitted on March 28th. [00:25:57] Speaker 04: It went through the peer review process then and was accepted in final form on May 30th. [00:26:02] Speaker 04: So at the point in which it was published in press for the world to see, [00:26:07] Speaker 04: It had gone through the peer review process at that point and was then going to be part of a later journal, a hard-copy journal. [00:26:14] Speaker 04: But it had gone through the peer review process. [00:26:16] Speaker 04: And the guidelines established that at that point, the publication is both citable and searchable. [00:26:24] Speaker 04: So that's the relevant reference for the June 3rd date. [00:26:29] Speaker 00: I would agree if that's what happened. [00:26:32] Speaker 00: But that isn't what happened. [00:26:34] Speaker 00: You can't find it. [00:26:35] Speaker 00: It's gone. [00:26:36] Speaker 00: It can't be retrieved. [00:26:38] Speaker 00: It was changed. [00:26:40] Speaker 00: We don't know how much was changed. [00:26:42] Speaker 00: We don't know what was changed, but it's not there anymore. [00:26:45] Speaker 00: If all that happened was that it was placed on the internet and there it sits, and you could find it, could reasonably find it. [00:26:55] Speaker 00: Okay. [00:26:55] Speaker 00: But that isn't what happened. [00:26:56] Speaker 00: And that's what's curious about this case. [00:27:02] Speaker 04: Well, again, the [00:27:04] Speaker 04: Part of the reason that it has the document object identifier is to allow people to reference it with a particular way. [00:27:10] Speaker 04: So we don't have any evidence showing that there were any material changes made. [00:27:16] Speaker 04: And we do have the article showing the publication date of June 3rd. [00:27:22] Speaker 04: And we have the publisher's guidelines that establish that as of June 3rd, it was both siteable. [00:27:26] Speaker 04: It was a later date. [00:27:27] Speaker 00: But that's what this is all about, isn't it? [00:27:30] Speaker 00: The article has a later date. [00:27:32] Speaker 04: Well, the article has the June 3rd date on it. [00:27:34] Speaker 00: We don't know what the initial submission was. [00:27:37] Speaker 00: We don't know what was on the internet and withdrawn. [00:27:42] Speaker 00: The office doesn't know, apparently it's not on the record. [00:27:46] Speaker 04: We have no evidence showing that it was any different though either. [00:27:49] Speaker 04: And that's really the critical point here is that the office with its limited resources found an article, a prior publication article. [00:28:00] Speaker 04: with a reliable June 3rd publication date, and that's the date on which the office relied. [00:28:05] Speaker 04: Thank you. [00:28:10] Speaker 03: I'd like to just clear up one knit. [00:28:22] Speaker 03: Opposing counsel is a brilliant attorney and has done a wonderful job on this. [00:28:27] Speaker 03: But she said that the article is submitted on the 28th of May and went through peer review and the peer review is completed 48 hours later and the article is accepted for publication. [00:28:39] Speaker 03: That's actually not correct. [00:28:40] Speaker 03: What happened is the article is submitted within 48 hours. [00:28:44] Speaker 03: The journal accepted, they recognized it as being newsworthy, but that's when the article is then sent out around the country and perhaps around the world to different professors that are in the same field. [00:28:57] Speaker 03: so the professors can look at the data and see whether the method is correct and if the data supports the conclusions. [00:29:04] Speaker 03: That peer review process takes several months. [00:29:07] Speaker 03: And in terms of what is added or subtracted during that, we can infer that something had changed because there was a six-month delay between the time that the journal said, hey, this is hot news. [00:29:22] Speaker 03: Let's run the paper. [00:29:25] Speaker 03: six month delay between that and the time that the journal article actually came out and then two months after the journal article came out there was an appendix published which is also in coincidentally is in our evidence appendix page 51 we see the article and then we also see a little tab in the middle of appendix 51 where they're talking about supplemental content and [00:29:55] Speaker 03: Just for curiosity, I looked in that supplemental content, and that supplemental content is another probably 50% more experimental data that these guys had come up with. [00:30:05] Speaker 03: And that was all put in within two months of the December publication, so that we see that these guys were actually working very fast, building a lot of data. [00:30:16] Speaker 03: And if they added a bunch of data within two months after December, [00:30:21] Speaker 03: My intuition is something must have been added in the six months before December. [00:30:29] Speaker 01: You mentioned in your opening argument that you reached out to the publishing company. [00:30:35] Speaker 03: Yes. [00:30:36] Speaker 01: Did you make any effort to reach out to Mr. Sturman? [00:30:40] Speaker 03: I had dinner with him and I said, did he clarify any of this? [00:30:46] Speaker 03: I said, Dan, do you have a copy of that manuscript published on the website? [00:30:51] Speaker 03: And he said, no. [00:30:55] Speaker 01: Well, aside from whether he had a copy, was there any discussion about whether it was or was not published on the date that it says it was published? [00:31:05] Speaker 03: I don't remember asking him whether... It would have been a good question to ask. [00:31:15] Speaker 02: Thank you very much. [00:31:16] Speaker 02: Thank you for your time.