[00:00:00] Speaker 03:
Continue 2256, noble, mild, error, versus instinct.

[00:01:03] Speaker 03:
I think we're ready, sir.

[00:01:04] Speaker 03:
Whenever you want.

[00:01:08] Speaker 01:
Good morning, your honors, and may it please the court.

[00:01:11] Speaker 01:
There was a fundamental lack of evidence that the alleged prior art catalog was publicly accessible before the critical date.

[00:01:20] Speaker 01:
Not just no substantial evidence here, but no evidence of all that the catalog that instrument has today existed before the critical date.

[00:01:31] Speaker 01:
that that particular catalog was present at the 2003 IDS show.

[00:01:36] Speaker 04:
One person said he brought it back, and the other person said he received it, and there were notes by that second person.

[00:01:45] Speaker 04:
Don't they all corroborate each other?

[00:01:47] Speaker 01:
No, Your Honor, because there's some fundamental gaps in that testimony.

[00:01:51] Speaker 01:
The person that went to the show, Mr. Shakir, said that he did not actually recall seeing the catalog.

[00:02:00] Speaker 01:
In fact, he did not recall actually going to the booth of Alpha Biotech, where the catalog was supposedly publicly accessible.

[00:02:10] Speaker 01:
And instead, what he said in his declaration was that it was their practice generally to go to these shows and pick up these kind of catalogs.

[00:02:19] Speaker 04:
Who else did it get back?

[00:02:21] Speaker 01:
There were a number of other trade shows that both of the witnesses testified, Shakir and Hartman, that they went to regularly.

[00:02:30] Speaker 01:
Hauntman went to shows in Israel.

[00:02:32] Speaker 01:
Shakir went to international shows.

[00:02:34] Speaker 03:
In March or April of 2003?

[00:02:37] Speaker 01:
Well, some of them were after that.

[00:02:39] Speaker 01:
There was a Greater New York show that was in the fall of 2003.

[00:02:42] Speaker 01:
And Shakir testified that without exception, his words, without exception, Alpha Biotech was exhibiting at those other shows.

[00:02:51] Speaker 01:
Also, Dr. Fromovich... Wait a minute.

[00:02:54] Speaker 03:
Didn't Mr. Hauntman testify that Shakir brought him back a copy?

[00:03:00] Speaker 03:
I'm sorry, I don't have the site in front of me.

[00:03:03] Speaker 01:
Correct.

[00:03:03] Speaker 01:
That was his testimony, but that's uncorroborated, Your Honor.

[00:03:06] Speaker 01:
There's no documents.

[00:03:08] Speaker 01:
There was a handwritten notation on the cover of the catalog, but that was admittedly unrelated to

[00:03:17] Speaker 01:
either Shakir or this IDS conference or to a date.

[00:03:22] Speaker 01:
There's no date.

[00:03:23] Speaker 03:
So what is your view the necessary corroboration for this would have been?

[00:03:27] Speaker 03:
That Shakir would have been able to say, yes, I recall distinctively that 18 years ago I brought back this particular catalog.

[00:03:36] Speaker 01:
That would have been the foundation, certainly.

[00:03:39] Speaker 01:
That would have been the oral testimony.

[00:03:41] Speaker 01:
And then there should, on top of that, there should be some written corroboration.

[00:03:44] Speaker 01:
The law says that we look at this oral testimony with disfavor.

[00:03:49] Speaker 01:
It's presumptively unreliable.

[00:03:51] Speaker 03:
There should have been a... What in the normal course of business dealings or personal dealings does one keep a paper record of receiving a catalog, giving it to someone else?

[00:04:03] Speaker 03:
for 18 years.

[00:04:04] Speaker 03:
I mean, do you think in the normal course of business, you record all of these transactions?

[00:04:10] Speaker 01:
Two responses to that, Your Honor.

[00:04:12] Speaker 01:
One is, Hauntman said that he kept an index of the catalogs that he had in his library, but that index didn't contain this level of detail in terms of when he got it.

[00:04:22] Speaker 03:
Okay, so that goes to my question of what level of detail do we have an expectation that people keep records of in the normal course of business?

[00:04:31] Speaker 03:
You're asking for a little too much, aren't you?

[00:04:33] Speaker 03:
I mean, I understand.

[00:04:34] Speaker 03:
The more corroboration, the better.

[00:04:37] Speaker 01:
But, um... Well, number one, it's an intrudence burden on this.

[00:04:43] Speaker 01:
And as I mentioned, there's a long history of case law requiring written corroboration.

[00:04:50] Speaker 01:
The oral testimony is insufficient.

[00:04:51] Speaker 01:
And there's a good policy reason for that.

[00:04:53] Speaker 01:
A valuable patent right has been extinguished based on

[00:04:59] Speaker 01:
recollections from 15 years ago, where there are large gaps between the recollections.

[00:05:04] Speaker 04:
A person's oral testimony needs corroboration.

[00:05:07] Speaker 04:
But cannot someone else's oral testimony corroborate the first person's testimony?

[00:05:15] Speaker 01:
Your Honor, we're not aware of any authority, nor has incident cited any authority.

[00:05:20] Speaker 01:
We're solely to witnesses' oral testimony.

[00:05:24] Speaker 04:
Or any contrary authority?

[00:05:26] Speaker 01:
Well, we think that the Finnegan case is quite helpful where it said as a matter of law that the oral testimony was insufficient there with a single witness situation.

[00:05:36] Speaker 02:
Right.

[00:05:37] Speaker 02:
One witness without more is not good enough to prove up a certain fact.

[00:05:43] Speaker 02:
Here we have two witnesses.

[00:05:46] Speaker 02:
We have the date on the cover of the ABT catalog saying March 2003.

[00:05:51] Speaker 02:
We also have Dr. Fromovich's testimony indicating that

[00:05:56] Speaker 02:
everybody knew that the 2003 IDS conference in Germany was one of the main events of the year and he was looking to get a catalog ready for that.

[00:06:07] Speaker 02:
And then there's some other evidence in the record that a catalog was prepared before March 2003.

[00:06:16] Speaker 02:
So I guess what I'm wondering is, is it really fair to say that everything that's going on here is not corroborated when we have data points

[00:06:27] Speaker 02:
here and there that perhaps collectively, under a totality of the circumstances inquiry, it's fair and reasonable to conclude that there is a reasonable inference that this catalog was in fact at the 2003 conference.

[00:06:41] Speaker 01:
Your Honor, my response there is that when we look at the testimony from Huntman and Shakir, it doesn't overlap.

[00:06:48] Speaker 01:
They don't corroborate each other in that Huntman's not at the IDES conference.

[00:06:53] Speaker 01:
He doesn't have any testimony of what happened there.

[00:06:56] Speaker 01:
doesn't have any recollection here.

[00:06:59] Speaker 02:
I guess he does have some recollection, which is that he never goes to these particular booths to pick up catalogs of this particular nature.

[00:07:07] Speaker 02:
Because for him, it's not of interest to him, but he does remember Huntman asking him for this particular conference to go sweep up all of the catalogs for this particular category of technology.

[00:07:22] Speaker 02:
And Huntman specifically recalls that

[00:07:25] Speaker 02:
He couldn't make it to this particular conference of all the conferences over the past several years.

[00:07:30] Speaker 02:
And so he specifically asked Shakir to sweep everything up, particularly because he was interested in what Framovich was up to.

[00:07:37] Speaker 01:
But I think the gap then follows from that, which is that if the catalog were at this particular conference and if it were being displayed in a publicly accessible manner, about all we have from the witnesses is that if it were there, I would have picked it up as opposed to

[00:07:54] Speaker 01:
The fundamental issue is it was there and it was publicly accessible.

[00:07:58] Speaker 02:
But they have the smoking gun.

[00:07:59] Speaker 01:
They have the catalog in their possession.

[00:08:01] Speaker 01:
Well, there's always the document that's allegedly the prior art.

[00:08:05] Speaker 01:
Otherwise, we wouldn't even be talking about an anticipation.

[00:08:09] Speaker 02:
And I don't recall Formavich ever saying that the catalog was distributed or available at any conference post-March 2003 IDS conference.

[00:08:19] Speaker 01:
What Dr. Framovich said is that he was using it as a teaching aid and that was in fact the main purpose of this was used as a teaching aid for clinicians that he was training how to use his implants and his surgical procedure

[00:08:45] Speaker 01:
We've got that at the appendix at 3477 through 78.

[00:08:50] Speaker 01:
And so there were dentists throughout Israel who were receiving this catalog.

[00:08:56] Speaker 01:
And these events were, again, no established date, but that was pre-critical date.

[00:09:01] Speaker 01:
So in addition to that, there's also testimony by Shakir that he's going to these other international shows and that Alpha Biotech was there with no exception.

[00:09:13] Speaker 01:
And so that's really establishing that there's other opportunities for this catalog to have turned over.

[00:09:21] Speaker 01:
And back to the issue of the specific recollection that Shakir is saying, I only picked up the implant catalogs at this particular show.

[00:09:29] Speaker 01:
I think if we look closely at the declaration from Shakir

[00:09:35] Speaker 01:
It really undermines that argument that Instradent has made.

[00:09:39] Speaker 01:
And in paragraph four at appendix 3411, he says, during the years I attended the IDS show, I would collect competitor materials, bring them back for review.

[00:09:52] Speaker 01:
I would pass on to Mr. Hotman for review materials relating to competitors' dental implants.

[00:09:57] Speaker 01:
So he's saying for years he's gathering dental implant materials.

[00:10:00] Speaker 01:
It's not just the one show.

[00:10:02] Speaker 01:
And then when he talks about the one specific show,

[00:10:05] Speaker 01:
In paragraph 5 of his declaration, next page 3412, I attended the 2003 IDS show, because Hontmann was enabled, quote, per our practice, I collected catalogs and other materials from competitors, especially the booths of Israeli companies.

[00:10:24] Speaker 01:
So this was not just happening at this 2003 IDS conference.

[00:10:29] Speaker 01:
This was a regular practice.

[00:10:31] Speaker 01:
And nonetheless, there were many other opportunities

[00:10:34] Speaker 01:
where this could have been collected at, and the fact that the focus shifted in the argument towards could the catalog have been... But it's not about practice, it's about the catalog.

[00:10:47] Speaker 04:
And the catalog did get back to Huntman, right?

[00:10:51] Speaker 01:
Certainly there was a catalog in Huntman's possession, but the touchstone of... The catalog.

[00:10:58] Speaker 01:
The catalog that they contained.

[00:11:00] Speaker 04:
The recorded reference.

[00:11:02] Speaker 01:
The purported reference, which I'm going to make two points on that, Your Honor.

[00:11:06] Speaker 01:
One is, number one, Shakir didn't remember seeing the catalog until he was asked to sign his declaration.

[00:11:15] Speaker 01:
And he specifically said at appendix 5827, the first time he saw it was in June of 2016.

[00:11:22] Speaker 01:
And when asked, did he remember whether he saw it at the IDS show, his answer was, quote, you ask me and I say, no, no, that's at 5827.

[00:11:31] Speaker 01:
27.

[00:11:32] Speaker 01:
So the fact that that catalog got there in and of itself is not enough.

[00:11:37] Speaker 01:
There's strong policy in favor of this corroboration requirement and essentially what we have is a circular argument from Instradent which is that if the catalog were there they would have picked it up with no one who remembers it and no one who has any kind of documentation and the

[00:11:57] Speaker 02:
Burden is theirs, even though it was a long time ago that this catalog... I understand it was their burden, but in the end it was your catalog, your side's catalog, and for whatever reason your side was unable to come up with anything as to the source and nature and origins of this catalog and when it was available and where it was handed out.

[00:12:22] Speaker 02:
I mean, is there a reason why that's so?

[00:12:25] Speaker 02:
That whenever they ask for discovery,

[00:12:28] Speaker 02:
There turned out to be nothing available?

[00:12:31] Speaker 01:
I think the answer to that is that in 2003, Alpha Biotech was a small operation.

[00:12:37] Speaker 01:
Dr. Framovich testified he was wearing many hats.

[00:12:40] Speaker 01:
He was running this business out of a small apartment in the back of his dental clinic.

[00:12:45] Speaker 01:
And the record keeping certainly isn't what you'd expect from a large company.

[00:12:49] Speaker 01:
And again, that was 15 years ago.

[00:12:51] Speaker 01:
And if there's a coin toss here, the burden is theirs and the high standard on corroboration.

[00:12:58] Speaker 01:
is something that is there to protect the patent owners from witnesses who would like to challenge patents like this.

[00:13:05] Speaker 03:
Can I just get, I think you fairly maybe or didn't make the argument in your brief that there's no dispute is there that the ITC, the earlier proceeding for our affirmance of their decision has any effect on our current adjudication?

[00:13:21] Speaker 01:
Not binding, but we certainly think the court should come to the same result.

[00:13:25] Speaker 03:
They had a different record and they had a different standard of review.

[00:13:27] Speaker 03:
So yeah, anything might be persuasive at some level, but there's not much, right?

[00:13:34] Speaker 01:
Well, I think it's instructive for two reasons.

[00:13:37] Speaker 01:
One is our view is that the evidence just isn't there, period.

[00:13:40] Speaker 01:
And we're not in that zone between preponderance and clear and convincing, number one.

[00:13:44] Speaker 01:
Number two, given the years of litigation and given the access to the discovery process,

[00:13:49] Speaker 01:
that incident had, and the fact that supposedly thousands of people were at this IDS conference, that this was the best that they could come up with, these two witnesses who can't match up.

[00:14:00] Speaker 01:
And they presented that not only late in the overall litigation, but late in this IPR process as well.

[00:14:10] Speaker 01:
And if this were handed out freely at this conference, there would be some more evidence.

[00:14:17] Speaker 01:
Thank you.

[00:14:36] Speaker 00:
Good morning, your honors.

[00:14:37] Speaker 00:
May it please the court?

[00:14:39] Speaker 00:
This court's precedent on public accessibility makes clear that actual retrieval of a publication is not even a requirement for public accessibility.

[00:14:50] Speaker 00:
But here, we've gone above and beyond that.

[00:14:55] Speaker 00:
We have actual retrieval.

[00:14:57] Speaker 00:
We have the actual catalog.

[00:14:59] Speaker 00:
This is the actual catalog.

[00:15:01] Speaker 03:
I'm not sure what you're saying.

[00:15:03] Speaker 03:
If we did not have the actual catalog here,

[00:15:06] Speaker 03:
And we have the statements in the record from Shakir and the other witness.

[00:15:11] Speaker 03:
You're not suggesting that would come close to being enough, right?

[00:15:15] Speaker 00:
Well, yeah, that is definitely not this case.

[00:15:17] Speaker 00:
It would be a completely different scenario if, for example, Mr. Shakir or Mr. Hantman had testified that, oh, I walked by the AlphaBio booth in 2003, and I saw the catalog there.

[00:15:30] Speaker 00:
And that was the only testimony that we have, as this court's presence makes clear.

[00:15:35] Speaker 00:
testimony of one witness that's not corroborated is not enough.

[00:15:39] Speaker 00:
Here we do have testimony from Mr. Hantman and Mr. Chakir that literally fits together hand in glove.

[00:15:48] Speaker 00:
Mr. Hantman testified and said in his declaration that he could not attend the 2003 IDS for personal reasons.

[00:15:55] Speaker 00:
So he asked Mr. Chakir to pick up all the dental implant catalogs that Mr. Chakir could find at that conference.

[00:16:03] Speaker 00:
This was a unique circumstance.

[00:16:04] Speaker 00:
Mr. Shakir, in his deposition, he was deposed for about seven hours on approximately a three-page declaration and asked multiple times about when would he pick up dental implant catalogs.

[00:16:15] Speaker 00:
And he was adamant every single time that the only opportunity that he did that was when Mr. Hantman asked him to for the 2003 test.

[00:16:24] Speaker 02:
Well, then can you respond to what Mr. Skanga pointed out, where apparently Mr. Shakir talked about how it was his practice to pick up

[00:16:33] Speaker 02:
catalogs, including from booths promoting dental implants.

[00:16:39] Speaker 00:
Sure, and in his declaration, he does talk about picking up catalogs at these conferences.

[00:16:44] Speaker 00:
It's undisputed.

[00:16:45] Speaker 00:
He and Mr. Hantman both attended many conferences.

[00:16:47] Speaker 00:
As a practice, not just as a one-timer.

[00:16:49] Speaker 00:
Sure, but both in the declaration and in his deposition, he made that clear that when it came to dental implants, that was not his part of the business.

[00:17:00] Speaker 00:
He said multiple times in his deposition that he didn't care about the dental implants unless Mr. Hantman asked him to pick up catalogs for dental implants, which only happened once at the March 2003 IDS.

[00:17:13] Speaker 00:
So that's... What was his part of the business if it wasn't dental implants?

[00:17:18] Speaker 00:
His part, I quite honestly can't remember.

[00:17:21] Speaker 00:
I know that the business name was something like Shakira Implants, but I don't

[00:17:27] Speaker 00:
quite honestly recall what his deposition testimony was on what is part of the business.

[00:17:36] Speaker 00:
That there were other aspects of this dental implant business, since it was a dentistry business, including x-rays and things like that, that was his role.

[00:17:47] Speaker 00:
But he was adamant that Mr. Hantman was the one who actually dealt with the dental implants

[00:17:52] Speaker 00:
And this was a unique circumstance where Mr. Chakur was asked to pick up these catalogs.

[00:17:57] Speaker 00:
It doesn't matter that he doesn't specifically remember the Alpha Biobooth.

[00:18:01] Speaker 00:
It's actually, it feels to common sense that you wouldn't remember every specific booth that you visited 15 years ago.

[00:18:09] Speaker 00:
But the testimony is clear that he picked up a stack of catalogs on dental implants, handed them to Mr. Hantman.

[00:18:15] Speaker 00:
And then Mr. Hantman's testimony and his declaration is clear.

[00:18:19] Speaker 00:
that he was particularly interested in this specific catalog, the AlphaBio catalog.

[00:18:24] Speaker 00:
He had heard about the SPI implant and he wanted to know more about it.

[00:18:28] Speaker 00:
And that is one of the reasons why he asked Mr. Chakir to go to the conference and pick up all these catalogs.

[00:18:34] Speaker 00:
Upon receiving the stack of catalogs, Mr. Hantman testified that he looked at the AlphaBio catalog and looked at the SPI implant.

[00:18:42] Speaker 00:
He testified about the various

[00:18:46] Speaker 00:
handwriting that's both on the front cover and within the catalog, testified that some of that handwriting was done at a meeting that happened just a few weeks after the conference.

[00:18:56] Speaker 00:
And this testimony between Mr. Hantman and Mr. Chakir really fits together hand in glove.

[00:19:01] Speaker 00:
It's also corroborated by Dr. Fromovich's testimony.

[00:19:05] Speaker 00:
Dr. Fromovich, while admittedly he didn't remember a lot of things, he did remember that he attended the 2003 IDS

[00:19:15] Speaker 00:
and he operated a booth there.

[00:19:17] Speaker 00:
He testified that the March 2003 date that is prominently on the front cover of the catalog was put there in advance of the March 2003 IDS.

[00:19:29] Speaker 00:
He testified that he distributed this catalog, made it available to people that were doing training sessions with him throughout 2003.

[00:19:40] Speaker 00:
We also have documentation from the AlphaBio website

[00:19:45] Speaker 00:
that says that there's a catalog online, and that website from the Internet Archive was in early April of 2003, so just after this March 2003 IDS.

[00:19:58] Speaker 00:
We don't know what catalog that was, though.

[00:20:00] Speaker 00:
Well, the board specifically authorized discovery into what catalogs, all catalogs that would have been made available with this catalog online designation on the Alphabio website between early 2003 and the critical date,

[00:20:15] Speaker 00:
And in response to that, no documents were produced.

[00:20:17] Speaker 00:
The only catalog that we have from that time frame or before is this March 2003 catalog.

[00:20:24] Speaker 00:
And so that's something that the board considered.

[00:20:26] Speaker 00:
It didn't say, obviously, that that was dispositive, just like it didn't say that the March 2003 date on the catalog was dispositive.

[00:20:33] Speaker 00:
But it was one of the many factors, one of the many facts that the board considered in coming to its determination that this was publicly accessible at the March 2003 IDS.

[00:20:45] Speaker 04:
What is your response to Mr. Skanga's argument that oral testimony needs corroboration?

[00:20:55] Speaker 00:
I agree that oral testimony of a single witness does need corroboration.

[00:21:00] Speaker 00:
We disagree that the evidence of corroboration needs to be written.

[00:21:04] Speaker 00:
This court made clear in the TransWeb case that's cited in our brief that evidence of corroboration can be oral, can be written, can even be circumstantial evidence.

[00:21:15] Speaker 00:
And here we have all three.

[00:21:17] Speaker 00:
We have the oral testimony of Mr. Hantman, Mr. Chakir, and Dr. Fromovich.

[00:21:22] Speaker 00:
We have documentation.

[00:21:24] Speaker 00:
We have the actual catalog that's been sitting in Mr. Hantman's files for the past 15 years.

[00:21:29] Speaker 00:
We have also documentation of the catalog online designation on the website.

[00:21:37] Speaker 00:
And we have circumstantial evidence about Dr. Fromovich preparing for the IDS.

[00:21:43] Speaker 00:
making this catalog in preparation for that conference, and Dr. Fromovich making the catalog available to people who had training courses that were held with him.

[00:21:55] Speaker 00:
So we have literally all three types of corroborating evidence, which the board considered in full.

[00:22:02] Speaker 00:
And under the substantial evidence standard, we would submit that any reasonable fact finder would come to the same conclusion that the board did.

[00:22:11] Speaker 00:
that under preponderance of the evidence, this catalog was publicly accessible at the March 2003 IDS.

[00:22:37] Speaker 00:
I'd like to discuss the

[00:22:40] Speaker 00:
the claim construction argument for a few moments, since I won't have the opportunity to get up again.

[00:22:48] Speaker 00:
And it wasn't discussed in the first part of this argument.

[00:22:51] Speaker 04:
You're going to discuss frustoconical?

[00:22:55] Speaker 00:
Frustoconical, yes.

[00:22:56] Speaker 00:
A coronal region having a frustoconical shape.

[00:23:03] Speaker 00:
The patent specification, the board considered all of the evidence

[00:23:07] Speaker 00:
including, most importantly, the claims themselves and the patent specification.

[00:23:13] Speaker 00:
Nobel Biocare has made the argument a number of times, both before the ITC, before the administrative law judge, the commission in the ITC, and the board here numerous times that the coronal region having a frustoconical shape means that the entire coronal region needs to be frustoconical.

[00:23:33] Speaker 00:
Both the claims and the patent specification dictate otherwise.

[00:23:38] Speaker 00:
The inventors knew how to specify that an entire region must have some characteristic.

[00:23:48] Speaker 00:
If you look at claim nine of the patent, the inventors in that claim state entire threaded region.

[00:23:57] Speaker 00:
They don't say that in claim one.

[00:23:59] Speaker 00:
And also, if you look at the specification, as the board acknowledged,

[00:24:03] Speaker 00:
Figures eight and nine in the specification disclose coronal regions that are only partially frusticonical.

[00:24:13] Speaker 00:
In response, Nobel Biocare is essentially making the argument that, well, when we said having, we didn't really mean having, we meant something else.

[00:24:23] Speaker 00:
But this court's decision from back in 2000 in Lampe, as well as the MPEP, have stated for multiple decades,

[00:24:31] Speaker 00:
that when you use the term having, it's a transitional term that could mean comprising, could mean consisting of, and you need to look at the context of both the claims and the specification to determine what is appropriate.

[00:24:47] Speaker 00:
Here the board did that, and there's nothing, there's no clear teaching in the specification that this claim term was somehow limited to a single embodiment in figure 12.

[00:25:13] Speaker 00:
I'd also note that going back for a second to the public accessibility inquiry, one of the arguments that was made by Nobel Biocare in the brief was basically that these two individuals are lying because Mr. Hantman now works for a competitor, that the board considered that

[00:25:40] Speaker 00:
and the board rejected that proposition.

[00:25:42] Speaker 00:
The board rejected the proposition that at any of these other trade shows that Mr. Hantman and Mr. Chakir attended, that they would have picked up this particular catalog.

[00:25:53] Speaker 00:
In fact, I think as Judge Chenu pointed out, there is no evidence from Nobel Biocare that this particular catalog was brought to any of those other trade shows.

[00:26:07] Speaker 00:
So the testimony here is

[00:26:10] Speaker 00:
crystal clear.

[00:26:11] Speaker 00:
Mr. Hantman asked Mr. Chakir to pick these things up.

[00:26:14] Speaker 00:
Mr. Chakir did what Mr. Hantman asked, gave them to Mr. Hantman, and Mr. Hantman then kept this catalog in his files.

[00:26:23] Speaker 00:
This is a five-day long conference in March of 2003.

[00:26:26] Speaker 00:
It's undisputed that thousands of people attended this particular trade show, as this court has made clear, as recently as the GoPro decision, just from, I think, within the last couple of weeks, trade shows

[00:26:40] Speaker 00:
are a great place to find out information about products, including through the use of product catalogs.

[00:26:48] Speaker 03:
So I assume your view would be with respect to the ITC proceeding, given that we affirmed sort of the opposite conclusion in that case that has nothing to do with this, no effect on this, except perhaps the claim construction, which you're arguing, which was the same, right?

[00:27:06] Speaker 03:
your view was?

[00:27:07] Speaker 00:
Right, right.

[00:27:09] Speaker 00:
The claim construction was the same, yes.

[00:27:11] Speaker 00:
The ITC had previously determined under the Phillips standard, a narrower standard, that the coronal region having a frusticonical shape need not be entirely... Was it the ITC or the ITC-ALJ that had that claim construction?

[00:27:28] Speaker 00:
It was both the ALJ and then also the Commission itself.

[00:27:32] Speaker 02:
So even though the Commission found that this catalog was not a prior art reference, it went ahead and reviewed the claim construction issue?

[00:27:41] Speaker 00:
Yes, I believe that that was one of the... I think there were three or four different issues that the Commission told the parties, we want additional briefing on these particular issues.

[00:27:53] Speaker 00:
And one of them was the claim construction issue.

[00:27:56] Speaker 00:
So yes, at least when it comes to

[00:27:58] Speaker 00:
the catalog and the public accessibility, we believe that the ITC's decision and this court's upholding that decision is not of consequence here because both of the different standard preponderance of the evidence are so clear and convincing as well as a substantially different record because in that proceeding we didn't have the testimony from Mr. Chakir, we didn't have the testimony from Mr. Hantman, we also didn't have

[00:28:24] Speaker 00:
at that time, the catalog online designation that was on AlphaBio's website.

[00:28:29] Speaker 00:
So yes, we agree with Chief Judge Proves that that decision does not dictate a decision here, nor should it.

[00:28:37] Speaker 00:
And unless the panel has any other questions, thank you very much.

[00:28:52] Speaker 01:
So what I did not hear from my friend here was any evidence of record that there was anyone who saw this catalog at the 2003 show or anyone who could describe the circumstances under which allegedly the catalog was there.

[00:29:05] Speaker 01:
No eyewitnesses.

[00:29:07] Speaker 01:
And that's something that all these cases dealing with trade shows all have.

[00:29:12] Speaker 01:
And oral testimony from two witnesses here, to put that in perspective, this court in the Woodland case found

[00:29:21] Speaker 01:
six witnesses insufficient.

[00:29:24] Speaker 01:
In the Barb Dwyer case, the Supreme Court found 24 witnesses insufficient.

[00:29:28] Speaker 01:
We're lacking the basic corroboration from the documents, and the witnesses have a fundamental gap.

[00:29:36] Speaker 01:
As to the issue of there being some specific recollection of this particular catalog, I want to point to the exhibit E here to Mr. Hopman's declaration, which has a

[00:29:50] Speaker 01:
A whole collection of alpha biotech catalogs spread out like a deck of cards here.

[00:29:53] Speaker 01:
This is at 3396.

[00:29:55] Speaker 01:
These are all other catalogs that were in his files.

[00:30:01] Speaker 01:
He had no particular recollection as to how or when he came into possession of these.

[00:30:06] Speaker 01:
This kind of highlights why we need some more corroboration here.

[00:30:10] Speaker 01:
It's very unusual that he plucked out this one 2003 catalog and is able to say, oh yeah, this one, I remember how it ended up in my catalog.

[00:30:19] Speaker 01:
without the rest of these.

[00:30:21] Speaker 01:
And with respect to the catalog online, I think this court's recent decision in Appator is instructive on that.

[00:30:29] Speaker 01:
It's not enough for the witness to say, oh, I remember I've got a dated email with an uncertain attachment, but take my word for it, this attachment was the thing that was attached to the email.

[00:30:40] Speaker 01:
That's kind of what we have here.

[00:30:41] Speaker 01:
Take my word for it that this is the catalog that Shakir brought back to me.

[00:30:45] Speaker 01:
Take my word for it that this is the catalog that must have been online.

[00:30:49] Speaker 01:
not enough to meet this high standard, their burden of proof, their burden on corroboration.

[00:30:56] Speaker 01:
There's no other questions.

[00:30:56] Speaker 01:
That'll be it for me.

[00:30:58] Speaker 03:
Thank you.

[00:30:58] Speaker 03:
We thank both sides and the cases.