[00:01:10] Speaker 04: Ready? [00:01:20] Speaker 04: Do you want to reserve seven? [00:01:22] Speaker 03: Yes, Your Honor, because there's a cross-appeal. [00:01:27] Speaker 03: May I please support? [00:01:28] Speaker 03: My name is Greg Distiant, and I am representing the appellant Janssen. [00:01:33] Speaker 03: We appeal the district court's decision granting summary judgment [00:01:38] Speaker 03: on grounds of ensnarement. [00:01:41] Speaker 03: And basically, one problem runs through the district court's decision from top to bottom. [00:01:47] Speaker 04: At page 44 of the blue brief, you say the court admitted there was no reason other than hindsight to focus on the differences. [00:02:00] Speaker 04: Where did the district court admit something? [00:02:04] Speaker 04: I doubt when courts admitted things, they let them into the record. [00:02:08] Speaker 04: I'm sorry if that's the language, Your Honor. [00:02:10] Speaker 03: Oh, but it is the language. [00:02:12] Speaker 03: But the admission or the statement from district court is where it said that. [00:02:27] Speaker 04: You missed my point. [00:02:29] Speaker 04: You mean the holding by the district court. [00:02:31] Speaker 04: I do. [00:02:32] Speaker 04: It is the holding of the district court that it that. [00:02:36] Speaker 04: The district court is not your opponent. [00:02:38] Speaker 04: I understand that. [00:02:41] Speaker 03: I apologize for the language. [00:02:42] Speaker 03: I just did that as I thought. [00:02:45] Speaker 03: But the district court said that it's not an impermissible use of hindsight to analyze the differences between the claim composition and a composition in the prior art that was directed to the same problem. [00:02:57] Speaker 03: And this is the second point I'll get to, if I will in the moment. [00:03:01] Speaker 04: Well, if you get a chance. [00:03:02] Speaker 04: At joint appendix 2240, [00:03:13] Speaker 04: The district court stated, quote, I don't think that the field patent, that it's proper to rely on it. [00:03:20] Speaker 04: And I don't suggest there's any improper motive. [00:03:25] Speaker 04: And then he goes on. [00:03:27] Speaker 04: If the field patent was that great for you, you would have put it in the brief. [00:03:32] Speaker 04: On page 47 of the red brief, Seltran says that when the district court noted Feld was not in your briefs, [00:03:40] Speaker 04: You responded, and it's in the record. [00:03:42] Speaker 04: You can disregard it, Judge. [00:03:46] Speaker 04: How, as the district court demonstrated, can you then possibly rely on Feldman in good faith after saying you can disregard it, Judge? [00:03:54] Speaker 03: The reason was because the district court did something that was not something the parties were arguing about. [00:04:00] Speaker 03: But then on page 102 of the appendix, the court reported to review other references in the prior art. [00:04:10] Speaker 03: And it then reviewed a few references in the prior art, ignoring the field patent, even though the field patent was one of the references that Dr. Glack and their expert relied upon in the underlying source material. [00:04:26] Speaker 03: And so it seemed to me unfair, incorrect. [00:04:30] Speaker 03: For him to disregard it. [00:04:31] Speaker 03: It seemed to me if the district court chose to make findings about what the art as a whole reflected, [00:04:38] Speaker 03: that this was an incomplete discussion. [00:04:41] Speaker 04: It was unfair of him to disregard it, is what you're saying. [00:04:44] Speaker 04: I think it was incorrect of him to disregard it. [00:04:46] Speaker 04: Incorrect of him, even though you said, quote, you can disregard it. [00:04:50] Speaker 03: I did for purposes of our affirmative argument. [00:04:52] Speaker 03: But then the district court, in my view, and you may disagree, I assume you do, the district court continued to discuss the entirety of these prior arguments. [00:05:04] Speaker 03: Had he not done that, I don't think there would have been a basis for me to raise field. [00:05:09] Speaker 02: Can I ask you, on the assumption that the district court said some incorrect things about [00:05:22] Speaker 02: the absence of any need for the obviousness case embedded in the experiment thing to establish some reason for a particular starting point. [00:05:37] Speaker 02: Why is that prejudicial here? [00:05:40] Speaker 02: Why [00:05:41] Speaker 02: Why can't the district court, even on summary judgment, be sustained because the evidence supplied that reason without there being a tribal issue of fact? [00:05:59] Speaker 03: Well, the evidence, I apologize if I didn't quite get which motivation you're talking about. [00:06:05] Speaker 03: You're talking about the entirety of it. [00:06:08] Speaker 03: Because the evidence on summary judgment should be looked at in the light most favorable to us. [00:06:13] Speaker 02: OK, so the particular form of the question is, what evidence creates a triable issue of fact on either the starting point or, more importantly, the set of overall factual questions whose answers go a long way toward determining obviousness? [00:06:31] Speaker 03: First, from the selection of the media, the starting point, there is the testimony of their expert, Dr. Glackin. [00:06:38] Speaker 03: at appendix 1094. [00:06:41] Speaker 03: And that says, you start, starting point are the classics, commercial media, and they are not complete serum-free media, which is what they're relying upon. [00:06:53] Speaker 03: So doing that evidence, and the like, most favorable to us, you don't start where they start, GSK or LifeTex. [00:07:00] Speaker 02: Did he go beyond saying that as an ordinary matter, somebody would start with what I think he called it the basal media? [00:07:09] Speaker 03: That is what he said. [00:07:11] Speaker 03: Our expert said you wouldn't start there at all. [00:07:14] Speaker 03: He said, yes, as an ordinary matter, you wouldn't start there. [00:07:19] Speaker 03: Our argument is, in the light most favorable to us, you wouldn't start there. [00:07:24] Speaker 03: And that's not where an artisan would start. [00:07:26] Speaker 03: That's supported by more general evidence about the extraordinary amount of experimentation [00:07:32] Speaker 03: and selection and addition and subtraction of compounds that artisans go about in creating these media. [00:07:39] Speaker 03: So that's the first part. [00:07:41] Speaker 03: The second part has to do with the ingredients. [00:07:45] Speaker 03: So let's say you get to the GSK formula, the district court [00:07:55] Speaker 03: If you don't use hindsight to identify the particular ingredients that you want to modify to recreate the claim to invention, then you're looking at 80 ingredients. [00:08:08] Speaker 03: How do you pick where to make modifications? [00:08:10] Speaker 03: Again, the record shows that artisans add and subtract routinely in the course of development. [00:08:19] Speaker 03: You've got 80 ingredients. [00:08:21] Speaker 03: The judge spent 14 pages talking about motivation [00:08:25] Speaker 03: the entirety of that discussion was general. [00:08:28] Speaker 03: That is, one has a general motivation to improve. [00:08:33] Speaker 03: If you look at that, that doesn't lead you, except with hindsight, to FAC. [00:08:43] Speaker 03: If you look at that, it leads you to an infinite number of choices. [00:08:47] Speaker 00: So that's- Is that a legal argument or a factual argument? [00:08:52] Speaker 03: It has two components. [00:08:55] Speaker 03: The legal argument is you should not use hindsight to select among 80 ingredients. [00:09:01] Speaker 00: And that you can't just look at the differences, I guess. [00:09:03] Speaker 03: And you can't, yeah. [00:09:05] Speaker 03: I think the judge misapplied Graham. [00:09:07] Speaker 03: I mean, Graham says, of course, you must identify the differences. [00:09:11] Speaker 03: But based on this court's longstanding case law, after you've identified the scope of the art and the differences and the like, [00:09:20] Speaker 03: then you do the obvious in this analysis and that requires setting hindsight to the side and looking at the art without hindsight to see if there's a motivation to modify the art to arrive at a compound [00:09:35] Speaker 03: You know, that eliminates the differences and is therefore obvious or there isn't. [00:09:38] Speaker 00: Let's say that we don't agree that the methodology is wrong. [00:09:42] Speaker 00: Is there also a factual assertion? [00:09:44] Speaker 00: Yes, there is. [00:09:44] Speaker 03: The factual issue is whether FAC is or is not interchangeable. [00:09:50] Speaker 03: They claim it is. [00:09:51] Speaker 03: The district court recognized that there was a fact dispute on that. [00:09:55] Speaker 03: If you look at 87 of the appendix, page 66 of his opinion, [00:10:00] Speaker 04: says the experts disagreed on whether FAC would have been equivalent to the iron chelates in the... But based on the testimony of Dr. Glackin, which you cite in your brief, couldn't different forms of iron chelates, chelators, deliver iron to the cells with a reasonable expectation of success? [00:10:21] Speaker 03: I think they could deliver some chelate with reasonable expectation of success, but not [00:10:30] Speaker 03: but not that the reasonable expectation of a successful formula that will grow sells in a desirable way. [00:10:38] Speaker 03: And by that I mean, let's say we can cast interchangeability. [00:10:42] Speaker 03: Their argument is you don't need motivation if it's interchangeable. [00:10:46] Speaker 03: I'll accept that for purposes of this discussion. [00:10:50] Speaker 03: So then you need a reason. [00:10:53] Speaker 03: FAC has to be desirable. [00:10:55] Speaker 03: It can't be technically feasible. [00:10:58] Speaker 03: It has to be a desirable option. [00:11:01] Speaker 03: The evidence, viewed as the most favorable to us, is that it's not a desirable option. [00:11:06] Speaker 03: It's just there. [00:11:08] Speaker 03: Adequate. [00:11:10] Speaker 03: Well, Fulton is the case I'm referring to when I use feasible versus desirable. [00:11:15] Speaker 03: Fulton says it's not sufficient for something to be technically feasible. [00:11:21] Speaker 04: Yeah, that's why I asked you the word adequate as opposed to desirable. [00:11:25] Speaker 03: No, it would not be adequate for a commercial. [00:11:28] Speaker 03: The judge is talking about making something that creates pharmaceutical. [00:11:35] Speaker 04: My question, if it was adequate, would that be satisfactory? [00:11:41] Speaker 03: I apologize for laughing, Judge. [00:11:42] Speaker 03: I think adequate is a word that you could push in either direction. [00:11:46] Speaker 03: And I'd prefer to stay within the case law. [00:11:49] Speaker 03: It's not desirable. [00:11:50] Speaker 03: Our experts said it was not desirable. [00:11:52] Speaker 03: Their expert agreed it was inferior to the others. [00:11:56] Speaker 03: So to remind you, you're within your rebuttal time. [00:11:59] Speaker 03: I am. [00:12:00] Speaker 03: But let me just finish this general question, which I think covers really everything I want to talk about. [00:12:05] Speaker 03: So to start with, we talked about the selection of the media. [00:12:11] Speaker 03: We talked about the ingredients. [00:12:12] Speaker 03: And the last error the district court made, in our view, is on concentrations. [00:12:18] Speaker 03: There are 80 concentrations. [00:12:20] Speaker 03: prior art reference. [00:12:21] Speaker 03: 50 of them, approximately, are overlapping. [00:12:25] Speaker 03: And for many of them, the prior art preferred concentration is outside of our range. [00:12:31] Speaker 03: Now, overlapping concentrations are not obvious. [00:12:35] Speaker 03: They are presumed obvious for a reason. [00:12:38] Speaker 03: They're presumed obvious because a range creates a motivation to experiment within the range. [00:12:44] Speaker 03: The range is 1 to 10. [00:12:46] Speaker 03: It provides a motivation for an artisan to find the optimal. [00:12:48] Speaker 03: and maybe come up with four and seven, whatever. [00:12:51] Speaker 03: The case law, however, is where the ranges are large. [00:12:56] Speaker 03: And here they are two and three orders of magnitude, each one. [00:13:00] Speaker 03: And there are many, 17 or 50 or 80, to optimize. [00:13:08] Speaker 03: Dr. Glackin testified that you would experiment with high, middle, and low in those ranges, those three choices. [00:13:17] Speaker 03: So you have three choices to the 17th power, or the 50th power, or the 80th power. [00:13:22] Speaker 03: You're talking about trillions of experiments. [00:13:25] Speaker 03: That's not routine optimization. [00:13:27] Speaker 03: So that's the third error. [00:13:28] Speaker 03: There's no motivation. [00:13:30] Speaker 03: In that circumstance, this court's case law says, [00:13:34] Speaker 03: need a reason to modify the concentrations. [00:13:37] Speaker 03: So there's no reason to modify the concentrations, no reason to zero in on the iron chelate in particular, no reason to replace the iron chelate with FAC, no reason to experiment with GSK. [00:13:51] Speaker 03: That's basically our case. [00:13:52] Speaker 03: And I think, given the time, I'll sit down. [00:13:55] Speaker 00: I have one question. [00:13:57] Speaker 00: What about the prior art? [00:13:59] Speaker 00: the district court at 102, JA 102 cited prior that thought that FAC was, quote, preferred. [00:14:07] Speaker 00: You still think there's a genuine issue of fact in that circumstance? [00:14:12] Speaker 03: I do. [00:14:12] Speaker 03: When we cite cases in our brief, if you're going to look at the art, you can't look at just one statement in the art. [00:14:19] Speaker 03: This particular statement is one sentence [00:14:23] Speaker 03: in a reference. [00:14:25] Speaker 03: In contrast, the only art that shows actual experiments is Keenan, which the district court discussed at length. [00:14:34] Speaker 03: And those experiments say it's not preferred. [00:14:37] Speaker 03: So where you have a mixed bag, let's look at it in the most favorable light to the ruling against us. [00:14:44] Speaker 03: There's a mixed bag in the art. [00:14:46] Speaker 03: Our expert says it's inferior. [00:14:48] Speaker 03: The district court doesn't [00:14:49] Speaker 03: disagree that that's a legitimate opinion. [00:14:52] Speaker 03: And that's reason enough to conclude it's not desirable, and the like, most favorable to us on summary judgment. [00:15:00] Speaker 03: Thank you. [00:15:01] Speaker 04: I'll restore you to three minutes. [00:15:02] Speaker 04: Thank you. [00:15:10] Speaker 01: May it please the Court? [00:15:11] Speaker 01: Jim Hirst on behalf of Celtron and others. [00:15:16] Speaker 04: And you're reserving three? [00:15:18] Speaker 01: Yes, I am. [00:15:20] Speaker 01: We think ensnarement follows from black letter law laid down by KSR. [00:15:25] Speaker 01: KSR held that a court must ask whether the improvement, and here, there's no alleged improvement. [00:15:31] Speaker 01: Claimed media is not alleged to be better than GSK or Life Text. [00:15:35] Speaker 01: And to go on, whether the improvement, quote, is more than the predictable use of prior art elements according to their established functions. [00:15:43] Speaker 01: It's similarly held [00:15:44] Speaker 01: When the prior art is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result. [00:15:56] Speaker 01: Here, that controls because although they used alternative chemical forms for a handful of ingredients, [00:16:04] Speaker 01: Both GSK and LifeTax deliver to the cells the exact same 52 ingredients as the claimed media. [00:16:15] Speaker 01: Exact same. [00:16:16] Speaker 01: Same food, overlapping concentrations. [00:16:19] Speaker 04: I have a strange fascination with ferric ammonium citrate today. [00:16:25] Speaker 04: On page 53 of the blue brief, Janssen says, quote, the art provided no affirmative motivation to use the [00:16:33] Speaker 04: quote, inferior FAC as a transferring replacement, which undoubtedly explains why FAC was not included in the formula of any publicly available cell culture media before the 083 inventors demonstrated its efficiency. [00:16:49] Speaker 04: Is that true? [00:16:50] Speaker 01: That is not true, Your Honor. [00:16:51] Speaker 01: That's incorrect. [00:16:52] Speaker 01: So Keenan is a 1996 reference that works with one particular cell line. [00:16:59] Speaker 01: It's called the MDCK cell line. [00:17:02] Speaker 01: And what Kenan showed is that FAC did what it's supposed to do. [00:17:06] Speaker 01: It delivered iron to the cells to help them grow. [00:17:08] Speaker 01: So it was adequate. [00:17:09] Speaker 01: But Kenan said there were others that were better and therefore preferred. [00:17:13] Speaker 01: But critically, what Kenan also said was that it should be noted that the effectiveness of any of these factors will depend not only in the cell line, meaning [00:17:26] Speaker 01: look at other cell lines, do some tests with other cell lines, and maybe you'll get a different order of preference on these iron supplying ingredients. [00:17:37] Speaker 01: And it also says, it notes, for example, it talks about FAC. [00:17:40] Speaker 01: For example, MedCap et al., 1994, found that a combination of SNP and FAC could supply high levels of growth in static culture but not in suspension. [00:17:53] Speaker 01: Pat here covers both static culture and suspension. [00:17:56] Speaker 01: So they're telling you it works well in other circumstances. [00:17:59] Speaker 01: But critically, there's no argument that this meets a teaching away type of showing, which requires you to prove that poses are disregarding it. [00:18:10] Speaker 01: It's out to pasture. [00:18:12] Speaker 01: No one's using it anymore. [00:18:13] Speaker 01: Two things. [00:18:14] Speaker 01: A 2003, a later now, piece of prior art, called FAC a preferred source of delivering [00:18:23] Speaker 01: Iron. [00:18:24] Speaker 01: Moreover, the vendor, for the media that we bought, the vendor had it in its commercial product starting in 2001. [00:18:32] Speaker 01: So folks out there were using FAC. [00:18:33] Speaker 01: So clearly, it's not a teaching away case. [00:18:38] Speaker 01: The main argument, look. [00:18:40] Speaker 02: Does this substitution argument based on the two passages from KSR that you mentioned [00:18:51] Speaker 02: make it immaterial whether there is a triable issue of fact about the starting point? [00:19:00] Speaker 01: I think the answer to that is yes, because you're looking at a piece of prior art, and you look at this prior art, and anyone who reads the prior art will fully understand that when they list an ingredient, interchangeable ingredients can be used and set. [00:19:15] Speaker 01: So they're making an utterly trivial, that's Jansen's words by the way, they said making substitutions from one interchangeable ingredient to another [00:19:25] Speaker 01: Janssen below, for its infringement cereal theory, said that's utterly trivial. [00:19:30] Speaker 01: That's what they said. [00:19:31] Speaker 01: So just anyone reading those pieces of prior would know that they don't just encompass just those ingredients, but also the known alternatives. [00:19:40] Speaker 01: And Janssen, by the way, has admitted, other than FAC, in a blue book, page 50, note [00:19:47] Speaker 01: four I believe, let me make sure I get that, or five, they admitted that every ingredient we're talking about for differences are interchangeable with the LifeTech and GSK ingredients. [00:19:58] Speaker 01: So there's no dispute that they're just interchangeable. [00:20:01] Speaker 01: But maybe if I, to make sure that I understand your question, think about how... Well, there was a large dispute and there was some [00:20:08] Speaker 02: substantial portion of the district court's analysis about whether there had to be a showing, like a leading compound, of a reason to pick out the particular portrait on the wall. [00:20:25] Speaker 02: And assuming that the law is, at least now, and since Kimberly Clark, yes, there does have to be a reason, then [00:20:35] Speaker 02: There seems to be some testimony from, is it Dr. Clackson? [00:20:40] Speaker 02: Clacken, yeah. [00:20:43] Speaker 02: What's his name? [00:20:44] Speaker 02: Clacken. [00:20:45] Speaker 02: Yes, Clacken. [00:20:46] Speaker 02: They cite that, they say, creates a tribal issue of fact about whether the starting point for the obviousness analysis was not what [00:20:58] Speaker 02: your starting point was. [00:21:00] Speaker 02: And I'm not sure whether the interchangeability piece of KSR means it doesn't really matter. [00:21:07] Speaker 01: Well, what I would say about that is there's not just one starting point. [00:21:11] Speaker 01: What they're doing is they are taking out of context Dr. Glackin's testimony. [00:21:16] Speaker 01: What he's talking about is in the laboratory, when you're going to make a brand new media, you use something that's available commercially. [00:21:23] Speaker 01: GSK and LifeTech were not available commercially. [00:21:27] Speaker 01: Think of the consequences to the argument that they're making, Your Honor. [00:21:32] Speaker 01: If what they said is true, the consequences would be truly absurd. [00:21:37] Speaker 01: Scientists could make utterly routine modifications to existing prior art and then argue that it's patentable because that piece of prior is not the right starting point. [00:21:50] Speaker 01: And along the same lines, the more crowded the art, [00:21:54] Speaker 01: the more difficult it would be to show obviousness. [00:21:58] Speaker 01: Because if there's a lot of pertinent relevant art, how would you show that one in particular is the right starting point? [00:22:05] Speaker 01: It's just not sensible. [00:22:06] Speaker 01: But also, Your Honor, the district court also had an alternative ruling. [00:22:10] Speaker 01: The district court held that even if he was required to show that LifeTech and GSK were the right starting points, he said they were. [00:22:20] Speaker 01: They were appropriate starting points. [00:22:23] Speaker 01: GSK and LIFETEX solved the problem that the claimed media allegedly solved. [00:22:29] Speaker 01: He held on its A49 to 50 node 4. [00:22:33] Speaker 01: He held that they already solved the problem. [00:22:36] Speaker 01: Serum-free media that worked to grow two particular cells. [00:22:40] Speaker 01: And at least for those particular cell lines covered by the patent here, at least for those particular cell lines, MRC and Vero, clearly GSK and LIFETEX would be an appropriate starting point. [00:22:52] Speaker 01: because they were proven to work in an animal-free serum on those two cell lines. [00:22:58] Speaker 01: And also, there's support in the record for that as well. [00:23:01] Speaker 00: And you're arguing this is a matter of law, right? [00:23:03] Speaker 00: I am. [00:23:04] Speaker 00: I am. [00:23:05] Speaker 01: There's no dispute that there was no contrary testimony to what Dr. Glackin explained, that [00:23:14] Speaker 01: And that the court found that if somebody wanted to make a cell line that grew these particular cells, it's certainly an appropriate starting point to look at LIGTEX and GSK. [00:23:28] Speaker 01: That was the district court's finding. [00:23:30] Speaker 01: There's no contrary testimony from the expert on the other side. [00:23:33] Speaker 01: Our expert at A3437 and at 73, I'm sorry, [00:23:42] Speaker 01: A1094 explained that if you want to, there's no right answer. [00:23:49] Speaker 01: In the lab, you need to go to commercial embodiments. [00:23:51] Speaker 01: But he said, if you find art that grows the cells you're trying to grow, that's a good place to start. [00:23:57] Speaker 01: Just copy what they did. [00:23:58] Speaker 01: That's what he explained. [00:23:59] Speaker 01: That's what the district court found. [00:24:04] Speaker 01: I want to make sure I save time for standing. [00:24:06] Speaker 01: I was going to go to the overlapping ranges. [00:24:08] Speaker 01: This seems pretty straightforward to me. [00:24:10] Speaker 01: There's many cases that say if there's overlapping ranges, they're presumptively obvious. [00:24:17] Speaker 01: For instance, this court in Geisler said, in that circumstance, you have to show that the claimed range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range. [00:24:33] Speaker 01: Janssen showed the opposite. [00:24:34] Speaker 01: They said that their ranges were guidelines, not critical, and that there's a wide range of interchangeable concentrations. [00:24:43] Speaker 01: That was their DOE theory. [00:24:45] Speaker 01: So that would be a situation where they can't possibly show that the overlapping ranges are not presumptively obvious. [00:24:52] Speaker 00: What about factual disputes regarding the weight of copying and secondary considerations? [00:24:57] Speaker 01: See, that's a legal dispute, not a factual dispute, because what the district court did was credit Jansen's evidence. [00:25:05] Speaker 01: So on the factual side of things, he said, I looked through the evidence, it's a close call, but I'm going to accept that there was copying here. [00:25:13] Speaker 01: We disagreed, but that's what he accepted. [00:25:14] Speaker 01: But then he moved on to the legal issue, because obviousness obviously is a question of law. [00:25:20] Speaker 01: And there's many cases. [00:25:21] Speaker 01: What he found was the copying evidence [00:25:23] Speaker 01: is insufficient to overcome the strong case of obviousness based on the other Graham factors. [00:25:29] Speaker 01: That follows a long line of cases. [00:25:30] Speaker 01: Wires is a good example. [00:25:33] Speaker 01: Where this court held, copying is one of the secondary considerations, but there were others, said, when the claimed invention, quote, represents no more than the predictable use of prior art elements according to their established functions, as here, secondary considerations are inadequate [00:25:51] Speaker 01: to establish non-obviousness as a matter of law? [00:25:55] Speaker 01: It's a legal question. [00:25:58] Speaker 01: So let me move on to standing briefly. [00:26:01] Speaker 01: We think the standing issue is pretty straightforward. [00:26:04] Speaker 01: It's the function of a court to enforce contracts as written and not to make a better contract for either of the parties. [00:26:12] Speaker 02: Your interpretation of this contract is just absurd, isn't it? [00:26:17] Speaker 01: I disagree, Your Honor. [00:26:18] Speaker 02: How could anybody [00:26:20] Speaker 02: has said the employee should assign this to, I don't know, 200 companies. [00:26:27] Speaker 01: There's pros and cons to the way you write these contracts. [00:26:31] Speaker 01: There were advantages to the way Jansen wrote it and the literal tax drama. [00:26:36] Speaker 02: What are they? [00:26:37] Speaker 02: What are the advantages that would require all 200 companies to be joined in any suit? [00:26:44] Speaker 01: Well, here's an advantage. [00:26:46] Speaker 01: The way Jansen [00:26:47] Speaker 01: is interpreting this contract, that it only applies to Centicor, and the direct employer, every single time an employee switched from one entity to another within J&J, they would have to create a brand new contract. [00:27:01] Speaker 01: They never did that. [00:27:03] Speaker 01: So it makes it simple in that way. [00:27:05] Speaker 04: How many times did they switch? [00:27:07] Speaker 01: This is an enormous company with 200 subsidiaries. [00:27:10] Speaker 04: I understand. [00:27:17] Speaker 04: routinely switched among companies. [00:27:19] Speaker 00: And didn't change their agreements. [00:27:21] Speaker 01: Right. [00:27:22] Speaker 01: It is Jansen's burden to prove standing. [00:27:25] Speaker 01: So this is a common sense advantage, and they're obviously forward-looking. [00:27:30] Speaker 00: But you're saying that they have the burden, but you're saying a reason why they want to write it this way. [00:27:34] Speaker 00: And there's absolutely nothing in the evidence to support your reason why somebody would want to write it this way. [00:27:39] Speaker 01: Remember, you're writing the contracts as a forward-looking thing. [00:27:41] Speaker 01: So you're trying to account for things that might happen in the future. [00:27:44] Speaker 01: So I'm positing one of the reasons why somebody might write it that way. [00:27:48] Speaker 01: But secondly, when different entities within a one... Your yellow light's on, just so you know. [00:27:54] Speaker 01: Will I get two extra minutes? [00:27:56] Speaker 01: Let me just continue to... No, you get two extra minutes if we eat up your time. [00:28:00] Speaker 01: If... I just thought because Mr... We ate up his time. [00:28:07] Speaker 01: But the point is transfer agreements and license agreements. [00:28:11] Speaker 01: When one entity within a larger company owns a patent, you have to engage in transfer and license agreements to give somebody else that right. [00:28:21] Speaker 01: There's a disadvantage to that because you have to do that as a free market transaction. [00:28:27] Speaker 01: It sets the royalty rate for your patent. [00:28:29] Speaker 01: But the bottom line is there is no law in New Jersey allowing courts to rewrite contracts. [00:28:35] Speaker 01: And that's what this is. [00:28:36] Speaker 01: The district court's reading of this provision has two key problems. [00:28:43] Speaker 01: One is that definition applies throughout the contract. [00:28:47] Speaker 01: And the district court said the definition, a defined term in the contract, has one meaning for patent assignments and a different meaning for confidentiality and non-competes. [00:28:58] Speaker 01: There's nothing in the contract suggesting that. [00:29:02] Speaker 01: For patent assignments, but not for confidentiality and non-competes, the district court's reinterpretation really is a rewrite. [00:29:10] Speaker 01: X is out, red lines, every word after the word Seneca. [00:29:14] Speaker 01: Every word. [00:29:15] Speaker 01: That is a rewrite, and nothing in the law allows for that. [00:29:19] Speaker 01: What New Jersey law says is when you're construing a contract, even if you deem it ambiguous, the job is to stay faithfully to the text. [00:29:28] Speaker 01: You have to decide between reasonable alternative interpretations and only for the purpose of interpreting the writing. [00:29:35] Speaker 01: You are not supposed to rewrite the contract to create an intention that's not expressed in the writing. [00:29:42] Speaker 01: So it has to be faithful to the actual writing in the contract. [00:29:47] Speaker 01: And that's something the district court did not do in this case. [00:29:49] Speaker 01: Thank you, Your Honors. [00:30:05] Speaker 03: You've got three of the seven you originally asked. [00:30:08] Speaker 03: I can do it in three. [00:30:10] Speaker 03: Let me just be very brief on standing. [00:30:13] Speaker 03: Basically, there is no disagreement that Janssen and his employees have universally always understood their contract between each other to require them to assign their addends only to Janssen. [00:30:27] Speaker 03: A third party, Celteon, is asking this court to interpret this contract in a way contrary [00:30:33] Speaker 03: the shared understanding of the signatories to the contract. [00:30:37] Speaker 03: We have found no case ever in New Jersey law when that kind of argument has succeeded. [00:30:45] Speaker 03: On ensnarement, a couple of quick points. [00:30:49] Speaker 03: First, starting point. [00:30:53] Speaker 03: Their argument is at core that they can pick with hindsight the closest prior art to install your decision in UCB [00:31:02] Speaker 03: which is what they cite principally on this point, says you may. [00:31:07] Speaker 03: It's not necessarily improper. [00:31:09] Speaker 03: But there has to be a reason. [00:31:11] Speaker 03: Often there is. [00:31:11] Speaker 03: Typically there is. [00:31:12] Speaker 03: You're building a better mousetrap. [00:31:14] Speaker 03: The prior mousetrap is going to be the closest prior art. [00:31:17] Speaker 03: But as UCB showed, there the racemic mixture in the prior art contained exactly the enantiomer, closer than our case, exactly the enantiomer that the claimed invention was. [00:31:30] Speaker 03: And it was rejected by the district court and affirmed by this court, because that's not where Watterskill, on the facts developed in the record, would start. [00:31:38] Speaker 03: You'd most favorably ask, you wouldn't start with these references. [00:31:44] Speaker 02: Can I just ask you again? [00:31:45] Speaker 02: Sure. [00:31:46] Speaker 02: And you're more familiar with the exact language of the testimony you're relying on from, is it their expert? [00:31:53] Speaker 03: Yes, and our expert as well. [00:31:55] Speaker 02: Oh, and yours, does one of them, at least Dr. Glackin, that's their expert. [00:32:02] Speaker 02: And I guess I was remembering his testimony as going no further than saying one ordinary place to start would be with the basal media, not that there isn't a range of possible starting points. [00:32:19] Speaker 02: So that wouldn't count against Mr. Hearst's assertion that [00:32:25] Speaker 02: If there is another starting point that has already solved a particular problem, that's a pretty good one. [00:32:32] Speaker 03: The answer to that is, and again, first what Glackin said is you look at the commercial media, the classics, and then you list a bunch of them which are classics. [00:32:45] Speaker 03: And they're fundamentally different than a complete media. [00:32:47] Speaker 03: You have to understand that a classic is [00:32:50] Speaker 03: the foundation on which media are built by people who want to make media. [00:32:55] Speaker 03: And they always add and subtract different ingredients. [00:32:57] Speaker 03: They need transferrin, they need transferrin replacements, or the like. [00:33:01] Speaker 03: So that's, he says, where you start. [00:33:04] Speaker 03: You don't necessarily start with a serum-free medium. [00:33:07] Speaker 03: You saw it on a paper somewhere. [00:33:08] Speaker 03: You don't select a complete serum-free medium. [00:33:12] Speaker 03: He says, I don't do that. [00:33:14] Speaker 03: He more or less says, I've never heard of anyone doing it. [00:33:17] Speaker 03: The closest he comes to Mr. Hurst's point [00:33:19] Speaker 03: is something along the lines of, it might not be unreasonable to do that, a double negative. [00:33:26] Speaker 03: And so I think, viewed in the light most favorable to us, all he is saying is, that's a technically feasible thing, but I've never heard of anyone doing it. [00:33:36] Speaker 03: And that's what our evidence is as well. [00:33:38] Speaker 03: So again, viewed in the light most favorable to us, that's what one does. [00:33:42] Speaker 03: And there's no evidence of one doing the other. [00:33:44] Speaker 03: OK, let me make two other quick points then. [00:33:48] Speaker 03: Interchangeability. [00:33:49] Speaker 03: Very quick. [00:33:50] Speaker 03: I'll make them very quick. [00:33:51] Speaker 03: I even have 39 seconds. [00:33:53] Speaker 03: No, you're over. [00:33:54] Speaker 03: Oh, I'm sorry. [00:33:55] Speaker 03: My clock's showing I have time. [00:33:58] Speaker 03: The interchangeability, Glacken affirmatively says they're not interchangeable. [00:34:04] Speaker 03: They're not desirable. [00:34:05] Speaker 03: If you look at page 22 of our yellow brief, it explains why when you've got conflicting evidence, you've got to balance it. [00:34:14] Speaker 03: And on summary judgment, that's a pretty hard thing to do against us. [00:34:19] Speaker 03: And lastly, nothing's predictable about this art. [00:34:22] Speaker 03: Go to Kenan, appendix 1159. [00:34:24] Speaker 03: The experiments emphasize the importance of assessing the stability of factors in media and their ability to support growth, not only through single stage. [00:34:34] Speaker 03: Wrap up, Mr. Diskin. [00:34:36] Speaker 03: OK. [00:34:36] Speaker 03: Go read the sentence. [00:34:37] Speaker 03: And thank you very much. [00:34:42] Speaker 03: Oh, it's frozen. [00:34:43] Speaker 03: For some reason, the clock's frozen. [00:34:44] Speaker 03: Oh, no. [00:34:45] Speaker 03: I'm sorry. [00:34:46] Speaker 03: I was trying to understand why your red light was on. [00:34:50] Speaker 04: I apologize. [00:34:53] Speaker 04: In light of that, I gave you two minutes. [00:34:57] Speaker 01: Well, they came up pretty quick, 30 seconds. [00:34:59] Speaker 01: The question your honor asked about whether there's more than one appropriate starting point and what our expert, whether, I'm sorry, whether our- We have the cross appeal. [00:35:22] Speaker 01: I was going to cite your testimony. [00:35:24] Speaker 01: That was it. [00:35:29] Speaker 01: So in terms of our interpretation of the contract, it has four subparts. [00:35:36] Speaker 01: It says Seneca and J&J and successors and future and existing subsidiaries. [00:35:43] Speaker 01: That's what it says on its face. [00:35:45] Speaker 01: Ambiguity, if there is ambiguity, it only allows you to interpret those words through a reasonable alternative reading of the words. [00:35:54] Speaker 01: It's not just what we said. [00:35:57] Speaker 01: It's also what Jansen attorneys said in court 11 times. [00:36:01] Speaker 01: 11 times they went to court, and it construed that definition in a straightforward way, covering what it says, all four of those components. [00:36:11] Speaker 01: They did it 11 times. [00:36:13] Speaker 01: And one of those times, [00:36:14] Speaker 01: They literally said that the two plaintiffs, not just the direct employer, but also J&J, own all inventions, patentable or not, developed by the defendant while at the plaintiffs. [00:36:26] Speaker 01: So they're in court taking the same position that we are. [00:36:30] Speaker 01: But in the end, the district court didn't rely on absurdity because of, I think, the pros and cons of writing the contract in the different ways. [00:36:37] Speaker 01: He didn't do that. [00:36:38] Speaker 01: But ambiguity doesn't allow rewrites of contracts. [00:36:42] Speaker 01: And that's all that is here. [00:36:44] Speaker 01: There's no New Jersey law that allows you to take a whole paragraph. [00:36:48] Speaker 01: And because it's now inconvenient to Jansen, redline everything after the word Senate court. [00:36:55] Speaker 01: There's no further questions.