[00:00:08] Speaker ?:
All right.

[00:01:08] Speaker 01:
Mr. Baker, when you're ready.

[00:01:22] Speaker 00:
May it please the Court, Todd Baker on behalf of the Appellant JTEC Corporation.

[00:01:30] Speaker 00:
Since standing is a threshold issue, I believe that it is prudent that I address that issue at the outset

[00:01:37] Speaker 00:
The constitutional minimum of standing consists of three elements.

[00:01:42] Speaker 00:
I would like to focus on the first element, whether a pellet has suffered an injury in fact.

[00:01:49] Speaker 00:
Here, this being an appeal from the PTAB, an IPR trial in particular, in order to demonstrate standing, certain requirements of standing, namely the immediacy of the harm

[00:02:02] Speaker 01:
may be relaxed, we cite to- Well, I mean, the question before Russ is how relaxed is relaxed.

[00:02:08] Speaker 00:
Understood.

[00:02:09] Speaker 01:
And it seems to me, do you have any cases that presented a similar or comparable kind of situation?

[00:02:17] Speaker 01:
Because this seems to me to be one that we haven't challenged yet.

[00:02:22] Speaker 01:
There's no product yet, right?

[00:02:24] Speaker 00:
There is no product.

[00:02:25] Speaker 00:
So I think we are in between three cases.

[00:02:29] Speaker 00:
So two cases I think we have.

[00:02:32] Speaker 00:
more evidence of the immediacy of the harm.

[00:02:36] Speaker 00:
So relative to consumer watchdog or to phyogenics, I think we are readily distinguishable over those two cases.

[00:02:45] Speaker 00:
But I don't think we can go as far as PPG industries where there was an actual threat of litigation known.

[00:02:53] Speaker 02:
Well, can we spend focus on the deck?

[00:02:56] Speaker 02:
We don't even have a product.

[00:02:57] Speaker 00:
We do not.

[00:02:58] Speaker 02:
As to which there could be a threat, right?

[00:03:02] Speaker 02:
We have... Often we're looking at a situation where there clearly is a product but you just haven't been threatened yet and even then sometimes we don't find enough for standing in certain circumstances.

[00:03:12] Speaker 02:
And what you're saying here is you don't even have a product much less a threat.

[00:03:18] Speaker 00:
We have due diligence efforts.

[00:03:21] Speaker 00:
We have a design concept.

[00:03:23] Speaker 00:
We have a prototype which is proof of that concept.

[00:03:27] Speaker 04:
Let's talk about the concept because

[00:03:30] Speaker 04:
If you look at your affidavit at 1644, it says the JTEC concept has been patented in US patent number 492.

[00:03:41] Speaker 04:
So what's missing, it seems to me, is some analysis of whether the product described in the 492 patent would infringe the GKN patent.

[00:03:57] Speaker 04:
And I don't see that analysis.

[00:04:00] Speaker 04:
Am I missing something?

[00:04:03] Speaker 00:
So our fear is based on the claim scope of the GKN patent.

[00:04:10] Speaker 04:
No, but answer my question.

[00:04:12] Speaker 04:
This refers, your own affidavit refers to the 492 patent.

[00:04:17] Speaker 04:
And you say it embodies the concept.

[00:04:20] Speaker 04:
Would the product described in the 492 patent infringe the GKN patent?

[00:04:30] Speaker 00:
That specific analysis is not of record, but I believe that it would.

[00:04:35] Speaker 02:
But you argue in your brief that, well, you don't want to say that because you don't want to have to prove the very case against yourself.

[00:04:45] Speaker 02:
That may happen sometime down the road.

[00:04:47] Speaker 02:
So you concede that you're not conceding infringement.

[00:04:52] Speaker 00:
Agreed.

[00:04:53] Speaker 00:
Even in a DJ action, there's no requirement for the appellant

[00:05:00] Speaker 00:
to establish infringement.

[00:05:03] Speaker 00:
That was in the Morowski family matter.

[00:05:05] Speaker 00:
So there's never a burden shift.

[00:05:08] Speaker 02:
Well, I'm not saying that there's a burden shift, but at least in those cases, you actually have a product and an allegation of infringement.

[00:05:17] Speaker 02:
Here, we don't have either.

[00:05:22] Speaker 00:
We have a development process.

[00:05:26] Speaker 00:
We have money being expended.

[00:05:28] Speaker 00:
We have potential additional costs without certainty to where we can practice in light of what we believe to be a clearly unpatentable slash invalid patent claim.

[00:05:40] Speaker 00:
And any additional delays just creates additional expense.

[00:05:44] Speaker 01:
Here's my problem.

[00:05:45] Speaker 01:
I mean, I don't know what we would say about a case in which somebody came in with a declaration saying, we've done this.

[00:05:53] Speaker 01:
We've got to make our next decisional step to get the product together.

[00:05:58] Speaker 01:
is going to cost $10 billion.

[00:06:00] Speaker 01:
And we need some certainty.

[00:06:02] Speaker 01:
We're never going to get the investments for that unless we have certainty.

[00:06:06] Speaker 01:
I don't even know if that would be sufficient.

[00:06:09] Speaker 01:
But the problem I'm having is the declaration doesn't give us anything of the sort.

[00:06:16] Speaker 01:
I mean, that's the suggestion that we need to know before we do investments.

[00:06:20] Speaker 01:
But the declaration doesn't indicate specifically what the next decision is, how much the next decision will cost, why you're deterred from going to the next step because of the possibility of infringement.

[00:06:36] Speaker 01:
So tell me if I'm wrong, but I can't find any specificity, even if the standard were arguably looser than I think it may be.

[00:06:45] Speaker 01:
But there's not even that specificity.

[00:06:48] Speaker 00:
Well, companies are confronted with design choices all the time in light of existing patents.

[00:06:53] Speaker 00:
Right.

[00:06:53] Speaker 00:
And they have to make expenditures to either pursue a particular path and risk infringement or to make the decision to design around.

[00:07:00] Speaker 00:
Right.

[00:07:00] Speaker 00:
Or they can pursue in parallel until they've reached some kind of conclusion on the validity of this patent, which is in front of them.

[00:07:07] Speaker 00:
Here, we have the ability to go to the PTAB to challenge the validity of a claim that we think should never been granted to begin with.

[00:07:15] Speaker 00:
We think that the immediacy

[00:07:17] Speaker 00:
of our fact pattern of having pursued that path where we could potentially have an infringing product, where we've made investments, where we proceeded to proof of concept, where we've spoken with customers, and where we actually have a date, 2020, when we plan to go live with this product, we think that that immediacy is sufficient in this scenario.

[00:07:41] Speaker 04:
You have this concept, which you say is going to be embodied in the product, even if there are going to be changes made in the concept.

[00:07:49] Speaker 04:
But you don't have somebody saying that this concept embodied in the 492 patent would probably infringe or would infringe.

[00:08:00] Speaker 04:
The affidavit doesn't say what you said this morning in the oral argument.

[00:08:05] Speaker 04:
That's my problem.

[00:08:07] Speaker 04:
And I don't think a remote possibility

[00:08:11] Speaker 04:
that something would infringe is enough to create an injury.

[00:08:16] Speaker 04:
In fact, the Supreme Court cases are somewhat all over the law.

[00:08:20] Speaker 04:
But the minimum standard is reasonable possibility, reasonable probability that the injury will occur.

[00:08:27] Speaker 04:
And it seems to me that the affidavits don't quite get you there.

[00:08:32] Speaker 00:
So absent having a live product, it's unclear to me how you could establish that.

[00:08:35] Speaker 04:
Well, you've got the concept.

[00:08:37] Speaker 04:
You say this is the concept as in the 492.

[00:08:40] Speaker 04:
But then you don't, the affidavit doesn't take the next step and say the 492 would infringe or probably infringes or they'll probably contend that infringes or something like that.

[00:08:55] Speaker 00:
No, agreed.

[00:08:56] Speaker 00:
We didn't think that there would be an expectation that there would have to be an admission of infringement.

[00:09:00] Speaker 04:
Well, I'm not suggesting an admission, but I'm just saying that, you know, an analysis of why

[00:09:07] Speaker 04:
there's a real risk that this 492 concept would infringe the patent that's not here.

[00:09:16] Speaker 02:
You don't even tell us what features of this new product you think would put you potentially at risk.

[00:09:26] Speaker 04:
Well, I think you do say the double clutch.

[00:09:32] Speaker 00:
Yes, it's going to the left and right clutch in lieu of the

[00:09:36] Speaker 00:
clutch being centralized.

[00:09:40] Speaker 00:
So we do point out in paragraphs 23 and 24 in the appendix, page 1644, not having a final product, there's nothing that can be analyzed for infringement.

[00:09:51] Speaker 00:
Now agreed, we could try to analyze the concept.

[00:09:55] Speaker 00:
But the concept, having been reduced to practice, we have made additional expenditures, but we are still at a point where we could make design choices.

[00:10:06] Speaker 00:
But absent any clarity here, we lack the ability to make that choice.

[00:10:11] Speaker 00:
And we think that the ability to be informed is significant, especially here when we are appealing from an administrative final decision.

[00:10:21] Speaker 00:
We believe we're well beyond what you would see in phygenics, where they're just relying on the invalidity of another patent, which may impact the value of their current patent.

[00:10:33] Speaker 00:
We're much further along than that.

[00:10:35] Speaker 00:
We're clearly distinguishable over

[00:10:37] Speaker 00:
consumer watchdog where they're basically trying to protect the public's interest.

[00:10:41] Speaker 00:
We've made real investments based on a decision that these claims are invalid.

[00:10:48] Speaker 00:
We've reached out through an administrative proceeding to have that decision analyzed.

[00:10:53] Speaker 00:
We've made investments on the assumption that they would be rendered invalid, and we think there should be recourse made available in those situations for appeal.

[00:11:01] Speaker 02:
But you concede in the affidavit that all of the features are evolving, and even as to the dual-clutch, you don't say it will be embodied in this new product, you say it likely would be.

[00:11:14] Speaker 00:
For business reasons, business decisions, we would like for it to be, but there's no technical requirement that it has to be.

[00:11:24] Speaker 01:
Well, again, I know I'm just repeating what Dino Melli said, but you say

[00:11:29] Speaker 01:
You don't even tell us in your declaration, we're at a critical moment in development and we've got to make these two choices and whether to design around or some which it wouldn't and this is how much money this next step is going to take us.

[00:11:46] Speaker 01:
The only thing you give us is this nebulous sort of concept thing which may or may not infringe and you tell us, well it's too soon to tell.

[00:11:59] Speaker 01:
You may make a good policy argument for why the law ought to be something that it may not be in terms of making solid business decisions and removing any doubts and any risks in the future.

[00:12:12] Speaker 01:
My problem is whether or not that's enough to give you legal standing.

[00:12:21] Speaker 00:
Looking at Lujan, we do have concrete plans to roll out a product in 2020.

[00:12:28] Speaker 00:
some day intentions where we're not sure when this is going to occur.

[00:12:32] Speaker 00:
We have intentions to roll a product out.

[00:12:35] Speaker 00:
I agree, we could change course between now and 2020, but we do have evidence that we do have a plan to roll out a product based on a concept, which based on a due diligence analysis at the beginning of this whole process, which we have specific declarations discussing, this particular patent was flagged as creating a risk to proceed to that 2020 rollout.

[00:12:58] Speaker 00:
Therefore, taking advantage of the IPR proceedings and based on the due diligence, we believe those claims to be unpatentable.

[00:13:06] Speaker 00:
And we think that the specific date, the 2020 date, distinguishes us from situations where there may be someday an opportunity to potentially infringe.

[00:13:17] Speaker 00:
We've made a specific allegation when this infringement could occur.

[00:13:22] Speaker 04:
If this concept reflected in the 492

[00:13:26] Speaker 04:
patent would infringe the earlier patent.

[00:13:30] Speaker 04:
How is it that there's no mention of the earlier patent in the 492 patent?

[00:13:35] Speaker 00:
That, Your Honor, I have not looked into.

[00:13:40] Speaker 00:
I will intend to give you a response during my rebuttal period if that is okay.

[00:13:45] Speaker 00:
Okay.

[00:13:46] Speaker ?:
Okay.

[00:13:46] Speaker 01:
So I'm going to hear from the other side.

[00:14:04] Speaker 03:
I am representing GKN, the patent owner and the appellee in this matter.

[00:14:15] Speaker 03:
I understand since the appellant petitioner did not address the substantive issues that I would be not able to address them in response and I should be limited to standing.

[00:14:28] Speaker 03:
Is that accurate or should I

[00:14:31] Speaker 04:
We may have some questions about this.

[00:14:33] Speaker 02:
If you have questions, then procedurally you're correct, but we get to violate those procedures if we want to.

[00:14:40] Speaker 03:
Okay, but I can't, so I get that.

[00:14:42] Speaker 03:
All right, but to the extent that I understand that as the procedure, I'm happy to answer any questions, and if you don't have questions on specific things, then I also would rest on the briefs, which I think are pretty clear.

[00:14:53] Speaker 04:
So what about this 492, Pat?

[00:14:56] Speaker 04:
What is your client's position?

[00:15:00] Speaker 04:
as to whether the concept reflected in the 492 patent would infringe your patent.

[00:15:06] Speaker 03:
OK.

[00:15:06] Speaker 03:
So until this point, the client has been pretty much in the dark about what their product would be.

[00:15:14] Speaker 03:
But you know about the 492 patent, right?

[00:15:18] Speaker 03:
The 492 patent is really addressed to various hydraulic improvements, and I don't know

[00:15:27] Speaker 03:
how they are combining the concepts in there to basically say that it could infringe.

[00:15:34] Speaker 03:
We haven't evaluated the patent for infringement of the 440.

[00:15:39] Speaker 03:
GKN hasn't done that.

[00:15:41] Speaker 03:
There was no reason to because throughout the proceedings below, their product was never at issue.

[00:15:49] Speaker 03:
It's not in the record.

[00:15:50] Speaker 04:
There's a problem here that we have in these cases where we have standing issues that

[00:15:56] Speaker 04:
aren't explored and can't be explored at the board level.

[00:16:00] Speaker 04:
And it comes up to us and all of a sudden we don't have a record that's before us as to the relevant facts concerning standing.

[00:16:12] Speaker 04:
And what we said is that the petitioner who's trying to appeal should put in affidavits.

[00:16:17] Speaker 04:
They put in affidavits.

[00:16:18] Speaker 04:
But how do we find out what your position is with respect to

[00:16:24] Speaker 04:
a proposed product and whether there would be infringement.

[00:16:27] Speaker 04:
In other words, your position as to whether there would be injury.

[00:16:30] Speaker 04:
How do we find out about that procedurally?

[00:16:34] Speaker 04:
You say your client hasn't analyzed it.

[00:16:37] Speaker 04:
Can we require your client to analyze it?

[00:16:40] Speaker 03:
Well, Your Honor, the petitioner has the burden of proof, obviously.

[00:16:44] Speaker 03:
And if they haven't met the burden of proof, and if you look at the nebulous declarations

[00:16:49] Speaker 04:
They actually said, to be clear, if I want to... You can just remain silent, and we can't find out what your position is?

[00:16:57] Speaker 03:
Well, it depends on how far they've met their burner proof, or if they've identified a product.

[00:17:01] Speaker 03:
And what I was going to point to was, if you look at paragraph 8... They've identified a concept here, right?

[00:17:07] Speaker 03:
Yes, they haven't identified a concept, but they've also said that their patent isn't their product.

[00:17:12] Speaker 03:
They've said that in paragraph 8 at APPX 1634.

[00:17:17] Speaker 03:
They say, to be clear,

[00:17:20] Speaker 03:
this patent does not depict any existing JTEC product.

[00:17:25] Speaker 03:
It says it details some concepts, but it's unclear as to how those will be combined.

[00:17:31] Speaker 03:
It's unclear that it will ever be combined, because if you actually look at the one document from May 2016 that they attached, it's pretty clear that they hadn't sold it yet in May 2016.

[00:17:44] Speaker 03:
This is the only business record, and that's

[00:17:47] Speaker 03:
APPX 1732 is the actual site.

[00:17:51] Speaker 03:
And they talk about getting the customer relationships.

[00:17:54] Speaker 03:
And there's so many contingencies depending on whether or not they get a particular type of vehicle.

[00:18:02] Speaker 04:
Let me give you a hypothetical.

[00:18:03] Speaker 04:
Suppose they had said that our product is going to embody the concept that's in the 492 patent.

[00:18:09] Speaker 04:
Let's suppose they said that.

[00:18:11] Speaker 04:
And how could we find out whether that embodiment of the 492 patent

[00:18:17] Speaker 04:
would, in your view, be infringing?

[00:18:19] Speaker 04:
How do we find that out?

[00:18:20] Speaker 03:
So, Your Honor, I mean, if you recall, in this case, and there have been a couple of other cases, I know that there's a case, Momenta, that's pending.

[00:18:30] Speaker 03:
I know that Leaphold was decided.

[00:18:32] Speaker 03:
And in all of these cases since Phigenics, including Phigenics, which was after Consumer Watchdog, there were motions filed, a motion to dismiss, and that was responded to.

[00:18:41] Speaker 03:
And then there would be a reply.

[00:18:43] Speaker 03:
In those circumstances, there would be a situation if there was a specific concrete product that prima facie showing, if it existed, could be rebutted.

[00:18:53] Speaker 03:
And maybe then the patent owner would have some burden to come back with some evidence that it either infringes or not infringes or what have you.

[00:19:04] Speaker 03:
But in the stance that we're in, there's no reply.

[00:19:07] Speaker 03:
They put it in.

[00:19:08] Speaker 03:
We respond.

[00:19:11] Speaker 03:
And we are speaking hypothetically because I don't believe that there would have been anything to analyze in this case.

[00:19:18] Speaker 03:
When they say that the patent is not our product, these concepts.

[00:19:21] Speaker 04:
They don't say the patent is not our product.

[00:19:23] Speaker 04:
What they say and what you pointed to is that there isn't any current product that embodies the patent.

[00:19:31] Speaker 03:
And then it says there are details or concepts that are likely to be included and in what combination you don't know.

[00:19:37] Speaker 03:
And then they say in footnote three of their reply brief,

[00:19:41] Speaker 03:
that until they have a customer and until those customers combines it with their product, there would be nothing to analyze.

[00:19:49] Speaker 03:
And I will say this, too, is when you have a patent, if they point it to a specific embodiment, that'd be one thing.

[00:19:56] Speaker 03:
But if they say various concepts, so right now the only thing I keep hearing is twin clutch concept.

[00:20:01] Speaker 03:
Twin clutch concept is not a product.

[00:20:04] Speaker 03:
Does that include the differential?

[00:20:06] Speaker 03:
Are they removing the differential?

[00:20:07] Speaker 03:
Are they dealing with transverse?

[00:20:09] Speaker 03:
power dividing distributions?

[00:20:12] Speaker 03:
Are they dealing with the longitudinal ones?

[00:20:14] Speaker 03:
None of that is there to analyze.

[00:20:16] Speaker 03:
So I'm speaking hypothetically, talking about the motions, noticing that in those other cases, that was a process that might avoid dealing with the substantive issues unnecessarily for dismissal.

[00:20:32] Speaker 03:
But I think that in this case, it's not that different than

[00:20:38] Speaker 03:
In Leaphold, which was dismissed, the cross appeal was dismissed, that was a situation where there was a concrete product that could be analyzed.

[00:20:48] Speaker 03:
But there were problems because it was used in Europe, and there was still commercialization, partners that needed to be found in the US.

[00:20:58] Speaker 03:
And that was dismissed for a lack of an injury in fact, which is still the constitutional minimum.

[00:21:04] Speaker 03:
Regardless, it is an issue.

[00:21:07] Speaker 03:
First off, how far below DJ standing you go in these circumstances.

[00:21:13] Speaker 03:
And then, how much evidence do you need to provide?

[00:21:16] Speaker 03:
And phygenics raise both of those.

[00:21:18] Speaker 03:
But in LeapBull, there was contingencies that would occur depending on the customers in the US.

[00:21:25] Speaker 03:
And that's kind of the same situation we have here.

[00:21:28] Speaker 03:
It's so dependent.

[00:21:29] Speaker 04:
Was that an opinion, that case you're referring to, was that an opinion?

[00:21:32] Speaker 03:
It was an opinion that there was no actual injury in fact.

[00:21:35] Speaker 03:
And I recognize, I draw the facts from the briefs because when there's very little precedent, you have to take it where you can get it.

[00:21:46] Speaker 03:
But it was dismissed.

[00:21:47] Speaker 03:
It was an opinion that came out in April 13th, I believe in 2018.

[00:21:52] Speaker 03:
And it was the cross appeal that was dismissed.

[00:21:55] Speaker 03:
The patentee actually appealed the adverse findings at the PTAP, and they were a cross appeal by the petitioner where there was no standing.

[00:22:05] Speaker 03:
for that, even though they had a concrete product, it was a known product, but they didn't have it in the US, and they didn't quite have the commercialization partners in place.

[00:22:16] Speaker 03:
And that's the same situation.

[00:22:17] Speaker 03:
And as I pointed out in APPX, the document with the APPX 1732, that's the one where it shows that they don't have the customer relationships defined.

[00:22:33] Speaker 03:
they reference that in their reply brief, then until they have that there's no product to be analyzed.

[00:22:40] Speaker 03:
And regardless of how much you relax certain things like redressability, an actual injury in fact is still a constitutional minimum floor.

[00:22:52] Speaker 03:
So that doesn't change.

[00:22:53] Speaker 03:
And so it can't be based on conjectural hypotheticals, which makes it not imminent.

[00:23:00] Speaker 03:
And here it is conjectural because

[00:23:03] Speaker 03:
There are a lot of things that have to happen.

[00:23:05] Speaker 03:
I mean, there's a highly attenuated chain of possibilities, including development, testing, developing a customer base, determining what kind of vehicle it's going to be on.

[00:23:15] Speaker 03:
Because differentials are still cheap, reliable, easy.

[00:23:20] Speaker 03:
And so for some vehicles, that's going to be put in place.

[00:23:23] Speaker 03:
So until that's all done, it's not determined what the product is going to be.

[00:23:30] Speaker 03:
all of which could result in a change to the product independent of the PCAPP decision.

[00:23:36] Speaker 03:
And it appears in this case that rather than having an advisory opinion on a specific product, it's really an advisory opinion from the appellate court to leave all possible development avenues open because they don't have the customer base defined.

[00:23:54] Speaker 03:
And when they talk about money spent, I didn't see any tie to the specific

[00:24:00] Speaker 03:
concept or any specific concept that would be tied to the patent.

[00:24:05] Speaker 03:
So there was a lot of vagaries involved in the declarations.

[00:24:21] Speaker 03:
One thing that was mentioned was that whether there was policy arguments of what the law should be versus what the law is.

[00:24:30] Speaker 03:
And there are times that Congress has created an artificial infringement, for example, and on the Hatch-Waxman Act.

[00:24:39] Speaker 03:
I mean, that's up to them to determine at what level.

[00:24:42] Speaker 03:
But I think that it's up to a petitioner.

[00:24:46] Speaker 03:
If they're developing a product and they want an opinion, there were processes before, like re-examinations, like you could do an ex parte re-examination, put it out there and the patentee would deal with it.

[00:24:57] Speaker 03:
and you couldn't be involved.

[00:24:58] Speaker 03:
Some people chose to do that, and some people chose not to.

[00:25:01] Speaker 03:
Some people can get a written opinion from a lawyer, and they make their decisions for development based on that.

[00:25:09] Speaker 03:
Done a few of them.

[00:25:11] Speaker 03:
So it depends.

[00:25:12] Speaker 03:
These are choices that's completely in their hands that are independent of the patent owner, and these are avenues that can be pursued.

[00:25:21] Speaker 03:
And if they do pursue an IPR,

[00:25:25] Speaker 03:
The important thing is that if they may have to recognize that you can't appeal it, that you have a benefit because now you have a PTAB decision verifying or not verifying whatever your attorney's opinion was.

[00:25:44] Speaker 03:
But if you do it too early in the process, you won't be able to appeal it.

[00:25:53] Speaker 03:
Do you have any other questions or anything on the substantive issues?

[00:26:20] Speaker 00:
First, I would like to address Judge Deck's question.

[00:26:24] Speaker 00:
Based on the face of the 492 patent, we do not believe that the 440 patent is of record.

[00:26:32] Speaker 00:
So I wanted to clarify that.

[00:26:33] Speaker 00:
I would also like to address the issue of whether or not there are specific facts creating a nexus between the concept of the 492 patent and claims two and three of the 440 patent.

[00:26:50] Speaker 00:
I do believe that paragraphs 22 to 25

[00:26:54] Speaker 00:
on pages 1644 and 1645 of the appendix do that.

[00:26:58] Speaker 00:
There we made clear or I should say the declarant made clear that the 492 patent is a four wheel drive or discloses a four wheel drive disconnect concept where the secondary drive train can be disconnected from the primary drive train when not in use through the use of twin clutches on the side shafts.

[00:27:18] Speaker 00:
So we have specificity regarding what that concept is.

[00:27:21] Speaker 00:
It is not as broad

[00:27:23] Speaker 00:
has been characterized by the appellee.

[00:27:26] Speaker 00:
The declarant goes on to say that based on his knowledge, his personal knowledge, that the concept illustrated in the 492 patent and the fact that the twin clutch aspect is likely to remain in any product, his comparison of claims two and three and that concept create a risk for JTEC.

[00:27:48] Speaker 00:
And then he goes on and compares.

[00:27:49] Speaker 01:
The first sentence in paragraph 23 says, because JTAC has not yet developed a final product, there is nothing that can be analyzed for infringement.

[00:27:58] Speaker 01:
This is true.

[00:28:01] Speaker 00:
But there have been steps taken to pursue, monies have been spent to pursue the concept of the 492 patent.

[00:28:09] Speaker 00:
And that does create an injury.

[00:28:11] Speaker 00:
And there are specified dates for a product which would embody those concepts.

[00:28:17] Speaker 00:
And I'd also be remiss if I didn't discuss the impact of IPR estoppel here.

[00:28:22] Speaker 00:
I believe having advanced the fact pattern, at least beyond what consumer watchdog and phygenics that the impact of JTEC no longer having the right to argue before the PTO or in civil proceedings or otherwise.

[00:28:45] Speaker 00:
patentability issues based on prior patents and printed publications creates an injury in itself as well.

[00:28:52] Speaker 01:
Haven't we said otherwise?

[00:28:54] Speaker 00:
If there's no injury in fact.

[00:28:56] Speaker 00:
You said otherwise.

[00:28:57] Speaker 00:
But you said if there is an injury in fact, in PPG industries.

[00:29:04] Speaker 01:
Yeah, but that estoppel is not the factor that would give you standing here.

[00:29:08] Speaker 00:
But you said it could enhance the issue if there is an injury in fact.

[00:29:13] Speaker 01:
If there is an injury in fact, yeah.

[00:29:16] Speaker 00:
So, I have nothing further, Your Honors.

[00:29:18] Speaker 00:
Thank you.

[00:29:18] Speaker 01:
We thank both sides in the cases submitted.