[00:00:01] Speaker 02: We have three argued cases this morning. [00:00:03] Speaker 02: The first of these is number 18-1255, Lincoln Global, Inc. [00:00:09] Speaker 02: versus Seabury North America, Inc. [00:00:12] Speaker 02: Mr. Sam Fromme. [00:00:21] Speaker 00: Good morning, Your Honors, and may it please the court. [00:00:24] Speaker 00: The board erred as a matter of law in this case when it concluded that the Atiano [00:00:30] Speaker 00: dissertation is a printed publication available to the public before the critical date. [00:00:36] Speaker 00: No evidence supports that conclusion. [00:00:39] Speaker 00: The test adopted by this court in nearly every case on printed publications is that there must have been a roadmap of some kind enabling an interested researcher to find the reference with reasonable diligence. [00:00:52] Speaker 00: The evidence of the record here shows no such roadmap. [00:00:57] Speaker 00: Now Seabury bore the burden of proof on [00:00:59] Speaker 00: the printed publication issue, and the record that we have is the record that they made. [00:01:04] Speaker 00: Seabury presented a couple of different kinds of evidence that I'll go through. [00:01:09] Speaker 00: They presented evidence before the critical date. [00:01:12] Speaker 00: So the evidence was that the dissertation was created, it was deposited in the library, and actually shelved in the library. [00:01:20] Speaker 01: On page eight of the blue brief, you say that Dr. Grazer did not explain how an individual, without his personal knowledge of the dissertation, [00:01:29] Speaker 01: could have learned of the dissertation in order to request it from the librarians before the critical date. [00:01:35] Speaker 01: If someone was seeking subject information, just generally about, they go into the library and they say, do you have anything on welding and teaching it, would they find it that way? [00:01:52] Speaker 00: All I can say, Your Honor, is the record does not reveal any way to find this dissertation, either by asking the librarian or by searching the stacks before the critical date. [00:02:05] Speaker 02: Doesn't the record show that it was catalogued? [00:02:09] Speaker 00: Your Honor, the record is a little bit unclear as to when it was catalogued. [00:02:17] Speaker 00: Dr. Grazer talked about the fact that it is in 2016 [00:02:22] Speaker 00: searchable online and in the university's catalog. [00:02:26] Speaker 02: But I'm not really saying that. [00:02:28] Speaker 02: I'm asking, it was deposited in the library and cataloged without having necessarily explained what cataloging meant. [00:02:39] Speaker 02: But it was cataloged before the critical date, right? [00:02:42] Speaker 00: That's correct, Your Honor. [00:02:43] Speaker 00: It was deposited and shelved in the library and cataloged [00:02:47] Speaker 00: What catalog means, we don't really know. [00:02:50] Speaker 02: But isn't it fair to assume that in libraries, generally cataloging means that you can search for it. [00:02:58] Speaker 02: You can find it by subject matter. [00:03:02] Speaker 00: Your Honor, all I can say is what's in the record. [00:03:05] Speaker 00: There's no evidence in the record that anyone before the critical date could have searched the University of Vermont Library. [00:03:13] Speaker 01: Can't we take judicial notice that library catalogs [00:03:18] Speaker 01: cataloged by subject matter, author, among other things? [00:03:24] Speaker 00: Well, Your Honor, that may be true in some libraries. [00:03:28] Speaker 00: But in some of this court's cases, in Ray Cronin and others, the cataloging was done by author. [00:03:35] Speaker 02: Well, the Cronin was in a shoe box, right? [00:03:39] Speaker 02: I mean, that was unique. [00:03:41] Speaker 02: Understood, Your Honor. [00:03:43] Speaker 02: That's hardly typical of libraries. [00:03:44] Speaker 04: I guess what we have here is we [00:03:48] Speaker 04: The board making an inference that the cataloging was something that was easily searchable by visitors to the library by subject matter. [00:04:01] Speaker 04: And I guess the question is, for us, why isn't that a reasonable inference? [00:04:08] Speaker 00: The reason, Your Honor, is there's no basis for that inference in this record. [00:04:12] Speaker 00: Dr. Grazer talked about the searchability of the catalog, but that was well after the critical date. [00:04:18] Speaker 00: And in fact, in this court's Inray Lister case, the manuscripted issue in that case was cataloged in Westlaw. [00:04:27] Speaker 00: And this court found that unless you show that this was cataloged prior to the critical date, the court reversed the board in Inray Lister. [00:04:37] Speaker 01: Well, once again, why can't we take notice that [00:04:42] Speaker 01: university libraries cataloged by, among other things, author name and subject matter. [00:04:50] Speaker 00: Your Honor, I think the court can take judicial notice of facts that are well known and indisputable. [00:04:58] Speaker 00: I don't know that to be true of the University of Bremen Library, which is an issue here. [00:05:03] Speaker 00: So I don't think that it would be a fair inference to say that simply because the thesis was shelved and [00:05:12] Speaker 00: somehow cataloged in the university library that it was somehow searchable by subject matter. [00:05:19] Speaker 00: This court has been explicit that searching by subject matter is the touchstone in some of these libraries. [00:05:25] Speaker 04: How about the evidence that today it's searchable through the online catalog by title subject matter author? [00:05:34] Speaker 04: You don't dispute that, do you? [00:05:35] Speaker 00: We do not dispute that. [00:05:39] Speaker 04: you want us to make an inference that it's possible, maybe even likely, that in 2006 the library had a different kind of online catalog system? [00:05:52] Speaker 00: Two responses to that, Your Honor. [00:05:54] Speaker 00: First, it was the Seabury's burden of proof. [00:05:57] Speaker 00: And all they needed to do, perhaps, was to get a librarian to submit a declaration saying that our catalog system was searchable [00:06:05] Speaker 00: the same way in 2016 as it was previously. [00:06:07] Speaker 00: So that was their burden of proof. [00:06:10] Speaker 00: The second response to that, Your Honor, is the case at Inray Lister, I think it was 2004, involved exactly that, where the reference was cataloged in the Westlaw database, but there was no evidence of when that actually occurred. [00:06:26] Speaker 00: And this court said to infer that a document was cataloged before the critical date [00:06:33] Speaker 00: based on evidence that occurred after the critical date was pure speculation in the court's words. [00:06:40] Speaker 02: And so we don't think that would be a fair inference in this case, especially when... Well, that might have been more similar if in Lister it had been cataloged in the Westlaw database before the critical date, and then the question was whether it was cataloged in the same way. [00:06:57] Speaker 02: In other words, in my recollection of Lister, you can correct me if I'm wrong, [00:07:02] Speaker 02: is that there wasn't any evidence of cataloging in the Westlaw database before the criminal date at all. [00:07:08] Speaker 02: It wasn't a question of what the method of cataloging was. [00:07:12] Speaker 00: You're correct, Your Honor. [00:07:13] Speaker 00: In Lister, the issue was, when was it listed in the Westlaw database? [00:07:20] Speaker 00: Now, there was cataloging in the copyright office. [00:07:24] Speaker 00: And this court found that that was not enough, that cataloging there was insufficient. [00:07:30] Speaker 00: And in fact, more recently in the Acceleration Bay case, this court affirmed a board decision that involved not meaningful cataloging. [00:07:40] Speaker 00: And so the type of cataloging in these cases is critical, both in Acceleration Bay, Blue Calypso, and a number of others. [00:07:49] Speaker 00: And so without evidence of what type of searchability existed before the critical date, there is a huge gap in the petitioner's evidence there. [00:08:00] Speaker 00: And it's not as if the petitioner didn't have the incentive to produce all this evidence. [00:08:05] Speaker 00: They had a couple of chances, both in the reply brief, they submitted additional evidence, all after we challenged the public accessibility of the AT&T dissertation. [00:08:17] Speaker 00: And as I said before, the record that we have is the record that they made. [00:08:21] Speaker 01: Well, your public accessibility was answered by them by showing that it had been checked out. [00:08:28] Speaker 00: Well, Your Honor, with respect to the checkout record, there is no evidence of who checked it out or how they found it. [00:08:35] Speaker 00: So simply having a reference that was checked out simply means that someone, from some unknown means, was able to walk into the library. [00:08:45] Speaker 00: It could have been Etiano himself, for all we know. [00:08:48] Speaker 00: So that evidence itself doesn't suggest that it was accessible. [00:08:53] Speaker 01: So what? [00:08:54] Speaker 01: He's a member of the public. [00:08:57] Speaker 01: Why would he check out his own thesis? [00:09:00] Speaker 00: It doesn't make sense. [00:09:03] Speaker 00: I won't say that I deal with my thesis. [00:09:06] Speaker 00: But we just don't know how it was found. [00:09:09] Speaker 00: And the touchstone is whether persons in the interested field were able to access it, not whether one person was able to walk into the library and take it to the check. [00:09:22] Speaker 04: You're right that without more, we might not be satisfied [00:09:27] Speaker 04: that the fact that it was checked out a couple times proves that a stranger could have come in there and reasonably found it through some kind of catalog system. [00:09:38] Speaker 04: But we have, I think, a constellation of data points here that's more than just that, that thereby allows this checkout history to be some type of corroborating evidence of the idea that this catalog [00:09:55] Speaker 04: And then there's some kind of national system catalog. [00:09:58] Speaker 04: And the fact that this book that's on the shelf looks like a book that was published by some publisher called Shaker Virag, right? [00:10:10] Speaker 04: And has all this kind of official-looking indicia on the inside page. [00:10:15] Speaker 04: It looks like a book. [00:10:18] Speaker 01: It has an ISBN. [00:10:20] Speaker 04: It has an ISBN. [00:10:22] Speaker 04: It walks and talks like a book. [00:10:24] Speaker 04: Why don't we just think of it as a book that says on its face that it was published in 2006 and copyrighted in 2006? [00:10:34] Speaker 00: Your Honor, with respect to two responses to that. [00:10:37] Speaker 00: First, with respect to it looks like a book. [00:10:40] Speaker 00: That doesn't mean that it was accessible to members of the interested public. [00:10:45] Speaker 02: But there's a document here that says it was published both online and in hard copy. [00:10:52] Speaker 02: Why can't one assume that if someone took the trouble of publishing it, that they would make it available to the public? [00:10:59] Speaker 02: There's hardly any point in publishing it unless you try to sell it, right? [00:11:05] Speaker 00: Well, Your Honor, I think the exhibit that you're referring to is exhibit 1068, which is in the record at A1617. [00:11:13] Speaker 00: And with respect to [00:11:22] Speaker 00: Make sure I have the right. [00:11:26] Speaker 00: That would be an A 1783. [00:11:28] Speaker 00: 1783 in the joint appendix. [00:11:34] Speaker 00: With respect to that letter from Shaker Verlag about the publication, first of all, we submit that it's unauthenticated hearsay. [00:11:41] Speaker 04: I guess I was talking more about the pictures of the book that are at 1595 to 1606. [00:11:48] Speaker 00: Yes, Your Honor. [00:11:49] Speaker 04: Are there nice color pictures of a glossy book that come right off the shelf of the library? [00:11:53] Speaker 00: There are nice color pictures of a book in the library, but those pictures do not in and of themselves show that it was accessible to members of the interested public. [00:12:04] Speaker 02: No, but it shows that it was published. [00:12:07] Speaker 02: And the board is allowed to consider hearsay, right? [00:12:13] Speaker 02: It's not forbidden to consider hearsay. [00:12:18] Speaker 02: there's this letter that says it was published. [00:12:21] Speaker 02: If, in fact, it had been published, wouldn't that be a loan sufficient to make it accessible to the public? [00:12:28] Speaker 00: Well, Your Honor, I think the answer to your question depends on what the meaning of published was. [00:12:32] Speaker 00: The touchstone for this court's case law is not whether a document is, quote, published. [00:12:37] Speaker 00: It's whether it is reasonably accessible to the interested public. [00:12:41] Speaker 00: And so I could publish it. [00:12:42] Speaker 01: Well, you've got it backwards. [00:12:44] Speaker 01: If it's published, it is reasonably accessible. [00:12:48] Speaker 01: Yes, Your Honor. [00:12:51] Speaker 01: Do you know how an ISBN is obtained? [00:12:54] Speaker 01: I do not know that, Your Honor. [00:12:55] Speaker 01: It's obtained from a copyright office under international treaties and domestic legislation. [00:13:02] Speaker 01: We don't have to take notes of it. [00:13:04] Speaker 01: That's the law. [00:13:06] Speaker 01: So in order to have an ISBN number in the front of the book, the author had to submit it to the copyright office in Germany, and they had to review it. [00:13:18] Speaker 01: determine that it was a book and issue an ISBN and issue a copyright, which they did. [00:13:25] Speaker 01: As a consequence, that's additional evidence, is it not? [00:13:29] Speaker 00: Well, Your Honor, at least in the in Ray Lister, that's exactly what happened is the manuscript was first submitted to the Copyright Office. [00:13:35] Speaker 00: That was undisputed. [00:13:37] Speaker 00: The question before the Lister court was could anyone have found this book or this manuscript [00:13:44] Speaker 00: by searching by subject matter. [00:13:46] Speaker 00: That's the touchstone for all of this court's cases. [00:13:49] Speaker 00: And even if I got a book published and put it in my office, that would not be reasonably accessible to the public unless there was some mechanism for the public to find that book. [00:14:01] Speaker 02: Why would someone publish a book unless they wanted to make it available for purchase by the public? [00:14:07] Speaker 00: Well, Your Honor, I do believe that submitting the thesis to [00:14:11] Speaker 00: Shaker Verlag was part of obtaining a dissertation. [00:14:15] Speaker 00: The question, I think, in the exhibit that you're looking at is, how was that book or that PDF made available to the public? [00:14:24] Speaker 00: How could interested members of the public find it? [00:14:27] Speaker 04: And I think the answer to that question... Just curious, did you, I don't know, did your side contact the publisher, Shaker Verlag, to see if maybe there's a subset of things that they published that they [00:14:41] Speaker 04: hide in a locked closet or something like that? [00:14:44] Speaker 00: Uh, your honor, there's nothing in the record about our side contacting them. [00:14:48] Speaker 04: Okay. [00:14:48] Speaker 04: How about contacting the University of Bremen library? [00:14:51] Speaker 04: Did you check in to see if the online catalog that they had back in 2006 maybe was searchable by just the name of the author instead of by subject? [00:15:04] Speaker 00: Uh, your honor, there's nothing in the record about us contacting the University of Bremen library. [00:15:09] Speaker 00: But there's also nothing. [00:15:10] Speaker 00: It was not our burden of proof. [00:15:12] Speaker 00: And there's also nothing in the record about the University of Bremen library being searchable by subject matter, which is what this court requires. [00:15:22] Speaker 02: All right. [00:15:22] Speaker 02: You're out of time. [00:15:24] Speaker 00: I seem out of time. [00:15:25] Speaker 02: We'll give you two minutes for rebuttal. [00:15:27] Speaker 02: Thank you, Your Honor. [00:15:37] Speaker 02: Mr. Pimentel, is that how you pronounce it? [00:15:40] Speaker 03: Good morning. [00:15:40] Speaker 03: Can you please the court? [00:15:41] Speaker 03: Yes. [00:15:41] Speaker 03: Alihio Pimentel on behalf of Belly Seabury North America. [00:15:48] Speaker 03: This whole question and appeal is whether ETI was publicly accessible prior to the critical meeting. [00:15:53] Speaker 01: Why didn't you submit some evidence that wasn't hearsay? [00:15:57] Speaker 03: Well, we did. [00:15:59] Speaker 03: Dr. Brauser, for example, was subjected to cross-examination. [00:16:03] Speaker 03: He provided testimony at deposition. [00:16:05] Speaker 03: He's a percipient witness. [00:16:07] Speaker 03: He wasn't solely the dissertation supervisor for Dr. Etienne's work, but he testified as to his knowledge dating back to 1994, how the library catalog shelved and made available to the public. [00:16:20] Speaker 04: This would have been a much cleaner, simpler, easier case if you had simply brought forward a declaration from the librarian or the librarian that worked at the library back in the mid 2000s and said, yes, we had an online catalog system. [00:16:37] Speaker 04: Yes, every time we received a book from anyone, including one of the students' dissertations, we would not only shelve that book, but we would enter that book into our online catalog system. [00:16:49] Speaker 04: And the online catalog system at that time, unquestionably, was searchable by subject, by title, by author. [00:16:58] Speaker 04: That would have been easy. [00:17:01] Speaker 04: Why didn't you do it like that? [00:17:03] Speaker 04: Instead, you're creating a situation where we have to [00:17:07] Speaker 04: go through a chain of inferences to get to where you want us to get to. [00:17:11] Speaker 03: Sure. [00:17:13] Speaker 03: To answer the question, it was our belief that having Dr. Grazer testify on the issue made more sense because not only could he speak to the general practices of the library, but he could actually speak specifically for this dissertation and dissertations that were prepared [00:17:30] Speaker 03: how those would be shown. [00:17:32] Speaker 04: He could tell us that there was an online catalog system at that time, perhaps, because he worked at the university since 1994. [00:17:40] Speaker 04: But he didn't quite come out and say, and I know personally, through personal use, that that online catalog at the University of Bremen Library was searchable by subject, searchable by title, searchable by author. [00:17:54] Speaker 04: So of course, it was a fully indexed [00:17:59] Speaker 04: catalog as that's commonly understood. [00:18:03] Speaker 03: Well, he did testify that right after his testimony and his declaration that he had worked and been familiar with the library since 1994 that the online search feature was used and could be used to find the Etiana dissertation, not only based on author and title, but more importantly based on search terms. [00:18:24] Speaker 02: Yeah, but he used the present tense when he talked about that instead of saying that was possible. [00:18:29] Speaker 02: in 2006? [00:18:31] Speaker 03: Well, it's an inference that's drawn from the evidence, but it can be drawn either way. [00:18:37] Speaker 03: And on a substantial evidence standard, that's enough. [00:18:40] Speaker 03: The board exercised its expertise, it weighed the facts, and it read that evidence. [00:18:45] Speaker 03: And again, it's a constellation of evidence. [00:18:48] Speaker 03: It's not just Dr. Grazer. [00:18:50] Speaker 03: There's a circulation record. [00:18:51] Speaker 03: Someone actually went to the library and checked it out before the critical date. [00:18:54] Speaker 01: In the United States, when a copyright is issued, [00:18:57] Speaker 01: It includes a subject matter classification or several. [00:19:03] Speaker 01: This book is a novel about a Western Americana or something along those lines. [00:19:11] Speaker 01: How is it done in Germany? [00:19:13] Speaker 03: The evidence that we have of record is what's in the online record, which provides an exhibit. [00:19:23] Speaker 01: Give us a page number, OK? [00:19:25] Speaker 03: Sure. [00:19:33] Speaker 03: It is the screenshot that the board referred to in its final written decision as part of the evidence that it believed was sufficient to establish... A 1593-94? [00:19:45] Speaker 04: This is the screen grab of the online catalog? [00:19:51] Speaker 04: That's correct. [00:19:53] Speaker 04: A 1594 is the English translation? [00:19:56] Speaker 04: Is that right? [00:20:00] Speaker 03: Yes, that's correct. [00:20:01] Speaker 03: That's a screen grab of the landing page for [00:20:03] Speaker 03: the search for the online catalog. [00:20:06] Speaker 03: And so this is the information that would have popped up in the online catalog. [00:20:10] Speaker 03: And again, Dr. Brasser testifies, and again, was made available for deposition to testify as to exactly what these search terms would have meant to someone who, with his technical expertise, would have used to locate the actual document. [00:20:24] Speaker 03: It has a book number information where the three copies that are on the shelves are actually identified. [00:20:30] Speaker 04: And again, there is a screen grab from 2016, right? [00:20:34] Speaker 04: It is. [00:20:35] Speaker 04: But we need to be satisfied that this was available just like this before the critical date. [00:20:43] Speaker 04: Which is not 2016. [00:20:45] Speaker 03: Well, whether it's exactly like this or not, what we do know is Dr. Grazer testified in no uncertain terms that he not only confirmed that the dissertation had been shelved, that that [00:20:59] Speaker 03: And he's quoted to make sure it's exactly right. [00:21:01] Speaker 03: This is at appendix 988, which is his declaration. [00:21:03] Speaker 03: He says he confirmed it was deposited and quote, thereafter available for retrieval by the public on March 3rd, 2006. [00:21:11] Speaker 04: That's not a complete answer, though. [00:21:13] Speaker 04: What do we know? [00:21:13] Speaker 04: What does he mean by available? [00:21:16] Speaker 04: Available on the shelf? [00:21:17] Speaker 04: That's fine, but that's not good enough. [00:21:19] Speaker 03: There's probably a lot of shelves in that library. [00:21:22] Speaker 03: Well, there may be, but again, in his declaration, and again, this was subject to cross-examination, [00:21:28] Speaker 03: And this goes to the present tense issue. [00:21:30] Speaker 03: He testifies to be precise that he's been using the library since 1984. [00:21:34] Speaker 03: This is at page 1618 of the record. [00:21:38] Speaker 04: And there's an online catalog system, but he doesn't describe the details of how the online catalog system worked back during the critical time period, which is before 2010 or maybe even before 2009. [00:21:50] Speaker 03: This text, this testimony is meant to describe [00:21:55] Speaker 03: what has happened since the Atiano dissertation was deposited. [00:21:59] Speaker 03: And I think that was the board's interpretation of this. [00:22:03] Speaker 03: And it's a reasonable one. [00:22:04] Speaker 03: He talks about the use of the library since 94. [00:22:06] Speaker 03: In the next sentence, he says, the online catalog allows for easy electronic searching of holdings. [00:22:12] Speaker 03: He doesn't say it's just now. [00:22:14] Speaker 03: He's talking about the online catalog as it was available throughout the time. [00:22:18] Speaker 03: Now, when was it specifically available? [00:22:21] Speaker 03: Yes, he didn't testify to that. [00:22:23] Speaker 03: But he does go on and say that that online catalog, which again is what was there at the library, allowed any member of the public to search for it and locate it. [00:22:33] Speaker 03: So I think a reasonable inference, and the inference that the board drew from that, was that his knowledge of the library, he's a prescient witness. [00:22:42] Speaker 03: This is something that's required for all doctoral students. [00:22:45] Speaker 03: The whole point is to make the dissertations publicly accessible. [00:22:49] Speaker 01: I asked you for the [00:22:53] Speaker 01: Copyright certificate. [00:22:55] Speaker 01: And you referred me to the catalog printout. [00:23:00] Speaker 01: Do you have the copyright certificate in there somewhere? [00:23:02] Speaker 03: It's not in the record, I believe, Your Honor. [00:23:05] Speaker 01: Because that might answer your question right there. [00:23:09] Speaker 03: I apologize for not answering directly the question. [00:23:11] Speaker 03: But the copyright certificate is not in the record. [00:23:14] Speaker 03: We have the screenshot. [00:23:18] Speaker 03: But again, at the end of the day, the question is public accessibility. [00:23:22] Speaker 03: It's a constellation of information. [00:23:24] Speaker 03: We have the actual document. [00:23:25] Speaker 03: It has an ISBN number, an ISSN number. [00:23:29] Speaker 03: It's put in a library. [00:23:30] Speaker 03: You can take judicial notice. [00:23:32] Speaker 02: You're asking us to make inferences, and maybe those inferences are reasonable. [00:23:36] Speaker 02: But I think all of us are struggling with the idea, well, if this was the case, if the inferences lead to where you say they lead to, why didn't you provide that information? [00:23:49] Speaker 02: It was so easy to do it. [00:23:51] Speaker 02: I mean, here we've got [00:23:53] Speaker 02: proceeding before the board, an appeal here. [00:23:56] Speaker 02: This could have been solved by a sentence in his declaration or testimony. [00:24:02] Speaker 03: And Your Honor, we're not asking for the inferences to be made. [00:24:07] Speaker 03: What we're asking is for determination or confirmation that the board had evidence. [00:24:12] Speaker 02: That they could make the inferences. [00:24:14] Speaker 03: Right. [00:24:14] Speaker 03: And so they looked at this evidence. [00:24:16] Speaker 03: They drew an inference. [00:24:17] Speaker 03: And the question on appeal is, under the substantial evidence standard, [00:24:22] Speaker 03: Is that correct? [00:24:23] Speaker 03: And that's the approach to our argument here. [00:24:26] Speaker 03: And I think the answer to that is a resounding yes. [00:24:29] Speaker 03: Could things be done additionally? [00:24:30] Speaker 03: Sure. [00:24:31] Speaker 03: I mean, hindsight is often 20-20. [00:24:33] Speaker 03: But the reality here is we have a recipient witness. [00:24:37] Speaker 04: It wasn't quite hindsight. [00:24:38] Speaker 04: I mean, any patent lawyer knows when it comes to printed publication and public accessibility of a book in a library, in Ray Hall is the touchstone of that inquiry. [00:24:50] Speaker 04: and you know from Inray Hall, you need to prove up that the book was indexed and therefore searchable. [00:24:58] Speaker 04: And so therefore, you go to the librarian and say, whoever was the librarian before the critical date, that book that was on the shelf, was it actually indexed in some way? [00:25:11] Speaker 03: That's it. [00:25:12] Speaker 03: And although we don't have a declaration, we do have exhibit 1034, page 1566, which is the [00:25:19] Speaker 03: librarian letter that provides the shelving record and information. [00:25:23] Speaker 04: This is something that the board didn't rely on, right? [00:25:26] Speaker 03: No, actually, it is cited in their final written decision. [00:25:31] Speaker 04: Oh, they relied on this letter? [00:25:36] Speaker 04: My understanding is the board did not rely on this letter from day 1566, this email. [00:25:46] Speaker 03: Exhibit 1034. [00:25:48] Speaker 03: is cited at appendix page 16 of the final written decision. [00:25:56] Speaker 03: The board points out that Dr. Grazer confirmed that he'd reviewed the shelving records at the university, exhibit 1034. [00:26:03] Speaker 03: And exhibit 1034 is the document at appendix page 1566. [00:26:07] Speaker 04: Did the board rely on it? [00:26:09] Speaker 04: Yes. [00:26:10] Speaker 04: You're describing what the board described was your position. [00:26:17] Speaker 04: I see the board's analysis on its findings and its analysis beginning on the following page, A17. [00:26:25] Speaker 04: Right. [00:26:25] Speaker 04: Carrying over all the way through A20. [00:26:28] Speaker 04: And if you look at A17 through A20, I don't think you'll find a citation to this particular exhibit. [00:26:34] Speaker 04: Or am I wrong? [00:26:35] Speaker 03: Well, they provide a recitation of our evidence. [00:26:38] Speaker 03: And then they say, we find this record established as by reponderance of the evidence. [00:26:42] Speaker 04: Right. [00:26:43] Speaker 04: And then it goes through a number of the exhibits that you proposed. [00:26:47] Speaker 04: not including this one. [00:26:50] Speaker 04: This one was disputed over hearsay and other objections. [00:26:56] Speaker 04: And then it seems to me that the board stepped around that issue by just relying on other exhibits that didn't have those kinds of disputes. [00:27:07] Speaker 03: I guess I don't read the final written decision that way. [00:27:10] Speaker 03: I read them, they summarize what our evidence is [00:27:14] Speaker 03: And then they say, based on that record, which includes exhibit 1034, that they considered that preponderance of the evidence to establish accessibility. [00:27:25] Speaker 03: They go on to point out, as you noted on pages 18 and 19, some of the additional issues that appellant raised, including theories they've abandoned subsequently about which particular document was the publication, and addressing some of the case law as well. [00:27:45] Speaker 03: But that is part of the record. [00:27:46] Speaker 03: It's part of what they consider. [00:27:50] Speaker 03: And again, it's just one aspect of a constellation of things. [00:27:54] Speaker 03: The fact that it was checked out of the library in and of itself ought to be enough. [00:27:59] Speaker 03: I mean, there were some questions asked about judicial function. [00:28:02] Speaker 03: The function of libraries, particularly a university library, is to access documents, or in this case, books that contain information that people are looking for that's from a technical standpoint. [00:28:14] Speaker 03: Dr. Brasers indicated that he searched for virtual on the Welding and it popped up. [00:28:19] Speaker 03: Is there a question that could that mean that it wasn't available prior to that? [00:28:23] Speaker 03: It may or may not be. [00:28:24] Speaker 03: But on appeal, the question is, was that a reasonable inference for the board? [00:28:28] Speaker 02: And I think they say here that based on the record, we find it was published in book form by Shaker Verlag. [00:28:36] Speaker 02: It's on top of 18. [00:28:43] Speaker 03: Yes. [00:28:47] Speaker 02: So, I apologize, Your Honor, the question is... No, I mean, they actually made a finding about it being published in book form. [00:28:55] Speaker 03: Correct. [00:28:56] Speaker 03: And we have exhibit 1068 in the record, which is the publisher's letter, which says in no uncertain terms that it was available electronically, that it was available in book form, in printed edition, all years before the critical date. [00:29:09] Speaker 03: This isn't one of these situations where there's a question about timing with something shelved, [00:29:15] Speaker 03: and cataloged prior to the critical dates was years before. [00:29:20] Speaker 04: And so... Well, part of their argument is that, yes, it may have been cataloged as of 2016, but we don't know when it was cataloged before then. [00:29:30] Speaker 03: Well, again, if we look at the librarian letter with the shelving record, that is evidence of when the data was input. [00:29:38] Speaker 03: That's evidence of when it was actually available. [00:29:42] Speaker 03: And so, you know, and again, we have the testimony of Dr. Groza that was subject to cross-examination where he says, this was what was required. [00:29:49] Speaker 03: He had to go deposit in the library. [00:29:51] Speaker 03: It had to be shelved. [00:29:52] Speaker 03: They purposely picked Shaker Verlog as a publisher to make sure it had Y dissemination. [00:29:58] Speaker 03: It was in English. [00:29:59] Speaker 03: It had to be published. [00:30:00] Speaker 03: That was the whole point, to make it publicly accessible. [00:30:03] Speaker 01: The fact of the matter is that even if there [00:30:09] Speaker 01: is some question about cataloging. [00:30:12] Speaker 01: An awful lot of the time, people do research by walking over to where one book is shelved and looking at the other books in the section. [00:30:21] Speaker 01: And if it was shelved with other books about welding or teaching or whatever, they'd find it that way as well. [00:30:29] Speaker 03: I would agree, Your Honor. [00:30:30] Speaker 03: Another factor in terms of public accessibility, it's case by case, fact dependent. [00:30:38] Speaker 03: mountain of evidence that points in that direction. [00:30:40] Speaker 03: And on the other hand, there's no evidence pointing in the other direction. [00:30:44] Speaker 03: There was no evidence that was developed to show that our testimony and our evidence on the issue of accessibility was incorrect. [00:30:53] Speaker 03: It could have equally gone to the librarian and said, hey, is this actually the way it is? [00:30:58] Speaker 03: Nothing of that sort. [00:30:59] Speaker 02: They never elicited it. [00:31:00] Speaker 02: I think we're out of time, Mr. Pimentel. [00:31:02] Speaker 02: Thank you. [00:31:03] Speaker 02: Thank you so much. [00:31:10] Speaker 02: Mr. Cianfrana, you've got two minutes. [00:31:17] Speaker 00: Thank you, Your Honor. [00:31:19] Speaker 00: I'd like to start by answering Judge Wallach's question from a moment ago. [00:31:22] Speaker 00: Yes, there are lots of ways to find things in a library. [00:31:25] Speaker 00: And sometimes if you just go to the area where welding books are, you might find some welding books. [00:31:31] Speaker 00: But there is no evidence that that was the case in the University of Bremen Library with respect to the disease. [00:31:38] Speaker 01: I think your problem is what the Brits say, that you were too clever by half. [00:31:44] Speaker 01: You thought you had laid a trap for your opponent by saying what they have is hearsay. [00:31:53] Speaker 01: And I'm just going to rely on that. [00:31:55] Speaker 01: I'm not going to try to disprove their case. [00:32:00] Speaker 01: And it's pretty evident that you could have. [00:32:05] Speaker 01: I don't know what was done. [00:32:07] Speaker 01: that you didn't put in, it's not in the record. [00:32:11] Speaker 01: But it just shoots your position. [00:32:17] Speaker 00: My only response to that, Your Honor, is I don't know that the librarians could be made available for deposition. [00:32:23] Speaker 00: I can't speak to whether we tried or didn't try because it's just not in this record. [00:32:31] Speaker 01: I taught in German law schools for 11 years. [00:32:36] Speaker 01: German librarians, university librarians like American university librarians and others tend to want to help people. [00:32:47] Speaker 01: All you have to do is ask. [00:32:50] Speaker 00: Understood, Your Honor. [00:32:52] Speaker 00: With respect to your earlier question about the copyright certificate, there's no evidence in the record of any copyright certificate that I know of or any evidence about how the German [00:33:05] Speaker 00: copyright system worked in this case or worked generally. [00:33:10] Speaker 00: And so this entire issue is a lack of evidence that was their burden to produce. [00:33:17] Speaker 00: You don't need evidence on that. [00:33:18] Speaker 00: It's a matter of law. [00:33:22] Speaker 00: Thank you. [00:33:22] Speaker 00: I'm going to see if I'm on time. [00:33:23] Speaker 01: OK. [00:33:23] Speaker 02: Thank you. [00:33:24] Speaker 02: Thank both counsels. [00:33:25] Speaker 02: The case is submitted. [00:33:28] Speaker 02: Our next case is number 18-13.