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Our last case for today is 2018-2075, US Water Services versus Nozo Zimes.

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Ms.

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Umberger?

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Umberger, that's got it.

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Thanks.

[00:00:21] Speaker 01:
Good morning, Your Honors.

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In the last case, you heard a lot of discussion of extraordinary.

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But we do have something extraordinary here today.

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And that's what the district court did here.

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On page 57 of the blue brief, you say, I'm quoting, in granting judgment as a matter of law, the district court also claimed that neither it nor this court had ever considered whether example one, separate from the rest of VITE, inherently anticipated.

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Did the district court let you argue that example one was missing any of the limitations of the asserted claims at trial?

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He did not.

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The district court said,

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that while, quote, all agree that, it is VITE, right?

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VITE, right?

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VITE.

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VITE, okay.

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All agree that VITE does not expressly teach a method of deposit control, close quote.

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That doesn't matter, quote, if the source of the prior art recognizes the inherent result.

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Assuming that advantages of certain enzymes are later discovered, why should we find that element not met?

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But there's nothing in example one that would inevitably and inherently or always result in the missing claim limitation, which is deposit reduction.

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It doesn't mention deposit reduction.

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So if you're talking about whether the invention was disclosed before, which is the heart of 102, it was not disclosed in white.

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I'm sorry.

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For inherent anticipation, it's really not only not helpful, it's a prerequisite for inherent anticipation that the prior art does not mention.

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deposit reduction.

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That is correct.

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But I gather, I thought it was undisputed that if you get rid of all the phytic acid and the phytic acid salts, there's not going to be any phytate to deposit because the ingredient is missing.

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So it was undisputed that phytic acid can reduce phytic acid, I'm sorry, phytase.

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Right.

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So I want to put aside the question of whether you've got a whole bunch of other stuff in the soup

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So that if you reduce it a little, you're still going to have enough to cause the deposit.

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I mean, what example one says is, reduce the phytic acid to undetectable levels.

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If you do that, is it undisputed that at least in the beaker, on the benchtop, in the lab, you can't have deposits of phytate?

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You cannot reduce the formation of deposits.

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Of course, you don't know if there were any deposits.

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that were forming at that time, because we don't have that evidence here.

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It was in a glass beaker.

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The patent talks about how deposits form.

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I think I'm confused.

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I thought it was undisputed that if you get rid of all the phytic acid and the phytic acid salts, you will have no phytate deposits.

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Is that disputed?

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No phytate deposits will form in that glass bottle.

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Correct.

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So what concrete variable

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or factor that exists in a plant would support a conclusion that what example one says happens on the bench might not happen in the plant.

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Well, first, there's no plant in the world that operates like VITE example one.

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Say something concrete.

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Big vat can't stir something.

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Pressure, ethanol concentration, the way that the equipment runs, the equipment.

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If you're talking about location in more than one place.

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What's that?

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There's more than one part of the plant.

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That is correct, which is not shown in VITE.

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VITE is not done in a plant.

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So there's no heat transfer equipment.

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There's no distillation column.

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But if you do VITE,

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in the pre-heat transfer equipment stage, there will be no phytic acid or phytic acid salts later in the process when you get to the beer column or the other heat transfer equipment.

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So if you could, in an actual fuel ethanol plant, reduce all of the phytic acid in fermentation, there would be no deposits to deposit down the street.

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Now, that's not example one.

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But what you're really saying is, if step one,

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in the plant was a glass beaker?

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Because that wouldn't be what it would have to be.

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Otherwise, it's not VITE.

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You see what I'm saying?

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That is correct, but also VITE doesn't have any of that downstream equipment.

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Unless you had step one in any plant being a glass beaker, I don't see how VITE applies.

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I agree.

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And it's not just that it's a glass beaker.

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It's that you're putting it in a pre-saccharification step, a very high temperature pre-saccharification step that is not used by any plant.

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We don't have any evidence about if you took example one, actually put it in a plant, what would happen.

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I thought there is some evidence.

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Didn't the other side say that it gave its stuff to various plants, and this is what happened?

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I realize zero evidence is not the standard.

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But I thought you just said there is no evidence.

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Didn't they say, basically, the accused product, we gave it to some plants and got rid of all the phytic acid in the cells?

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What they said was they were comparing the infringing plants.

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And this is the only evidence they have.

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They didn't do any independent testing.

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But what they said is, well, we know that the infringing plants got deposit reduction when they used phytase in the fermenter.

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which is not example one.

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When they used certain dosage and they talked about overlapping dosages in the fermenter in the plant, we know that they got deposit reduction.

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But there's lots of different variables, which their own expert concedes and admits that there's many variables.

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And you have to land on this right combination of these variables.

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What variable that's not listed in example one might

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Change the result when you don't use a glass beaker, but do it in a plant.

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First, there's a presence of metal.

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We don't know what that will do.

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Did your expert testify to that?

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Pressure.

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I'm sorry.

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Did your expert testify to that?

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I don't think the expert testified.

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They testified in specific equipment.

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Yes.

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They said you need to know what the equipment is in the plant before you would know whether or not bite example one would work.

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And I believe their expert also testified

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when asking what amount of phytase would reduce deposits enough that you would actually see a reduction in deposits.

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And he said, without going through those variables and fixing them at a particular site, knowing where the system was before.

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Let me just try to tell you what I'm confused or uncertain about.

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Much of the testimony that you cite, at least, is at a very high level of generality.

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not specifically focused on example one.

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And since example one is the only thing that matters here, it's not helpful in my current way of thinking about it to say, well, if you do stuff that's not example one, who knows what you'll get?

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Question is, if you do example one, with the one difference being you take it out of the beaker, off the lab bench, and put it in the plant,

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And the claim doesn't say where in the plant.

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Some of the claims, I think it's the 137, one of the patents doesn't even use the term plant.

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137 doesn't and 399 does, or 399 doesn't.

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The claim's at issue, right?

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I believe both patents use the term fuel ethanol equipment.

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They do, but only one of them uses plant.

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Was there any difference on

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Was any argument about that difference made in this litigation?

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It was not.

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So let's assume plant is in the picture.

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If you take example one with the pH and the temperature and the proportion and put it in some fuel ethanol equipment in a plant, what fact about that change might lead a jury to conclude what concrete fact that under no circumstances

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or I'm sorry, that you won't get the same result that you got on the bench, which is all the phytic acid gone as a result of which, no matter what happens downstream, you're not going to get phytic acid-caused deposits, because the material's not there.

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So if I understand your question correctly, you're saying if you basically took the material from example one and dumped it into the plant.

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No, you take material meeting the

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Conditions specified in example one, both the soup that you're going to put this thing into and then the amount of the phytase that you put in at a temperature and the pH quality of the soup.

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What is it about changing some fact?

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Maybe it's the metal.

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Maybe it's the metal in that.

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Maybe it's that you can shake a beaker and get it nicely distributed and you can't shake a

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giant, giant vat, or the mixing is not good.

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But I'm looking for something specific to understand why that might not be the same result, getting rid of all the phytic acid.

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So I think if you get rid of all the phytic acid,

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in the plan at that point.

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What fact about plant equipment might lead you to doubt that you will get rid of all the phytic acid if you do everything that example one specifies?

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Well, I think it's just unknown because we don't know what would happen.

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What fact might make it unknown?

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The fact that you're putting this in a high temperature presaccharification step and you're letting it ferment.

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Doesn't example one specify temperature?

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It does specify temperature.

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OK, so that's example one.

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Is there some evidence that says that temperature won't necessarily produce the same result in the plant?

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Again, you're focusing on a specific temperature, which is one operational parameter among many that you have to get just right and in the right combination to see.

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Example one says that, at least in the lab, that's just right.

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Why is it not just right in the plant?

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One, there's no evidence on that.

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Two, there's ethanol concentration, which our expert talks about, that can impact the effective phytase and whether or not it reduces phytic acid deposits.

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There's pressure in the plant, and we don't know what pressure this was put under in the plant.

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And again, I would go back to, then you're not at example one anymore.

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You're invoking obviousness.

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There's no one example that has all the limitations of the claims.

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And in the pH of 4.5, the pH is very important.

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What we talk about is the pH in the beer column.

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And there's nothing in example one that even talks about a beer column, much less what the pH in the beer column is, which is a limitation of some of the claims.

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So I do want to talk about something that went to your point, which is, what did Novizheim say about example one?

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Because it's their burden to prove inherent anticipation by clearing convincing evidence.

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And here, this court has already addressed this issue and said we had evidence of that.

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And more importantly, the district court overturned the jury's verdict.

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So you have to say, was there no reasonable evidence whatsoever that the jury could have found that Novacime didn't meet its burden?

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You ask a lot of good questions.

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It's Novacime's burden to prove that Veit will always and inevitably deposit.

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And we don't have to prove the opposite.

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Well, it doesn't actually have to prove that Veit will always and inevitably.

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What it has to prove is that example one, if followed in a plant, will always get rid of all the phyto gas.

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So it's really quite irrelevant that doing other stuff in VITE won't inevitably do it.

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So I would say two things to that.

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One, this is like the Perricone case.

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When Perricone, they said, the question is not whether, if you applied this lotion to sunburned skin, that it would actually treat the sunburned skin.

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It's did the reference itself apply that lotion to sunburned skin?

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And it didn't.

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And the court said it's not inherently anticipated if that was not met.

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And again, here, it should be a high burden, because you're talking about 102.

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You're talking about prior invention of something that is not expressly disclosed.

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So it should be a high burden, and it is a high burden.

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And as I said, it's like pericone.

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So that's my first point on that.

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My second point on that is that, again, these variables are very important.

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And their expert even conceded that you have to have exactly the right combination.

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So you're really picking and choosing from other parts of VITE in terms of, if you scale this up to a plant, will it inevitably and always reduce deposit reductions?

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And their expert does not say, if you scale this up, example one, to a plant, you will always inevitably get deposit reduction.

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Does not say that.

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What he says is, going through the teachings of VITE, following the practices of VITE,

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Specifically, adding phytase to fermentation.

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He says that twice on appendix 2640.

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If you add phytase into fermentation, you necessarily reduce the phytic acid deposits in the plant.

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That's not example one.

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So we don't even have testimony that says, if you take example one and scale it up into a plant, you'll always inevitably get

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that deposit reduction, and on that record.

[00:15:09] Speaker 00:
We are way over in your rebuttal time.

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Oh, I apologize.

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You need to save some.

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Thank you.

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Let's see if we can close the council.

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Is it Hadden?

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Yes.

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I believe the court gave Hadden for no reason.

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You're right, Your Honor.

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This is all about examples.

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So where is example one applied in a plan?

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Well, the whole disclosure of VITE

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Figure one is an ethanol production plant.

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Where is example one applied in a plant?

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Well, example one uses corn mash from a plant at the temperatures that it would be used at in pre-sacrification in a plant using the same enzymes that you use in a plant.

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It is then fermented for 96 hours like you would do in a plant.

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So there are plants then that use a glass beaker at that temperature.

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And they don't have any problem.

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Is that correct?

[00:16:07] Speaker 04:
No, Your Honor.

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The issue in FITE, FITE is demonstrating how you would use phytase in an ethanol plant.

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That's the purpose.

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That's what the patent is about.

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Example one is not a science fair project.

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Example one is to demonstrate how you would use phytase in ethanol production.

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And it uses the conditions that you would have in a plant.

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Of course, it's done in a laboratory.

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Chemistry is done in a laboratory.

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But the point of doing a laboratory is to show what would happen in the plant.

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And there was zero evidence at trial that example one would not work in a plant.

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It really wasn't their burden.

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No, I understand that, Your Honor.

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So why isn't it enough, even if, and I truly may not understand everything that was said and what all the evidence was, but even if their witnesses did not specify

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any concrete condition in a plant that would, and say, this condition, even if you did everything else in example one, would still not tell you that all the phytic acid is gone.

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Why isn't it enough for the jury to say, we just have uncertainty about Novosine's expert testimony on that subject and we're

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We're not persuaded.

[00:17:34] Speaker 04:
Two points, Your Honor.

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And the first is that both of US Water's experts conceded that if example one was correctly reported, there would be no phytate deposits in a plant.

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That's what Doran said.

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And it said 29728 of the appendix.

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And Flanagan said it at 3047 of the appendix.

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I'm sorry.

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Who did Doran and Flanagan belong to?

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Flanagan were the two US Water's experts.

[00:18:02] Speaker 03:
OK.

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So they acknowledged that.

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2972, and what was the other one?

[00:18:07] Speaker 04:
3047.

[00:18:08] Speaker 03:
Thank you.

[00:18:10] Speaker 04:
The other point, Your Honor, is that the only evidence that was presented in US Water's affirmative case about example one, and this is important, was not that example one would not work.

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What Mr. Flanagan said was that example one

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was 200 times the dosage of the smallest dosage in the fight pack.

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And this comes back to what the jury was told.

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The jury was told repeatedly by US Waters that it didn't matter whether example one worked, because to prove inherency, no design would have to prove that every dosage, including the smallest 0.005 dosage, would have to necessarily reduce deposits.

[00:18:59] Speaker 04:
That's what the jury was told over and over again.

[00:19:01] Speaker 04:
They were told that by Mr. Flanagan, and he said it because that's what US Water's counsel told him the law was, which we all know is not the law.

[00:19:11] Speaker 04:
Importantly, in their closing argument... Where does he say that?

[00:19:14] Speaker 04:
Excuse me.

[00:19:16] Speaker 04:
Mr. Flanagan testified, and this is at 3047, lines 22 to 3048, line 1.

[00:19:24] Speaker 04:
He says, quote, so the advice I was given by counsel

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whether it was necessarily would have to happen was that, yes, any of these ranges and any of these enzymes would necessarily have to result in what was disclosed in the U.S.

[00:19:37] Speaker 04:
Waters patent.

[00:19:39] Speaker 04:
So throughout the case, Flanagan and U.S.

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Waters argued not about example one, but about the .005 dosage.

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And it's clear as in closing where they testified example one from Veidt is about putting phytase into the saccharification, not into the ferment.

[00:19:56] Speaker 04:
Now that is irrelevant, as John noted, because the claim was construed to cover adding phytase at any step in the process.

[00:20:04] Speaker 04:
He then goes on and says, more importantly, this example is 200 times the lower range of phyto, right?

[00:20:11] Speaker 04:
Is it clear and convincing to come in here and tell you that, well, because 200 times if something works, just one of it would as well?

[00:20:19] Speaker 04:
That's a wild guess.

[00:20:20] Speaker 04:
That's not clear and convincing.

[00:20:22] Speaker 04:
So there's no dispute.

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that example one would work.

[00:20:25] Speaker 04:
Their argument was example one did not prove that the lowest dosage, the .0005 dosage, would work.

[00:20:33] Speaker 03:
I'm not sure that the two pages that you mentioned before, 2972 and 3047, say that if you did example one in a plant, you'd get rid of all the phytic acid.

[00:20:45] Speaker 03:
I thought they are just answers to the question, if you get rid of all the phytic acid, then will you have no phytate?

[00:20:54] Speaker 03:
Answer, well, yeah.

[00:20:56] Speaker 04:
Well, they were asked, Mr. Flanagan said, if all of the reporting is correct, he's referring to the reporting of the example.

[00:21:02] Speaker 03:
He doesn't say anything about moving it from a beaker and a bench to a vat in a plant.

[00:21:10] Speaker 04:
He's talking about what would happen in a plant if the reporting of example 1 and 5 is correct.

[00:21:15] Speaker 03:
Where's the in a plant part?

[00:21:29] Speaker 03:
And are we on 3047 or 207?

[00:21:30] Speaker 04:
Let me just find the right thing, Your Honor.

[00:21:51] Speaker 04:
So he's asked, Mr. Flanagan, if you accept what is expressly stated.

[00:21:54] Speaker 02:
Where are you, please?

[00:21:55] Speaker 04:
I'm sorry.

[00:21:56] Speaker 04:
I'm on 3047.

[00:21:57] Speaker 04:
Yeah.

[00:21:58] Speaker 04:
Line seven.

[00:22:01] Speaker 04:
OK.

[00:22:01] Speaker 04:
You accept what is expressly stated in VITE, which is we hydrolyze the phytic acid blood detection levels.

[00:22:08] Speaker 04:
Do you agree that no phytic acid deposits can form in those circumstances?

[00:22:13] Speaker 04:
He says yes, there would be nothing to hydrolyze, to deposit.

[00:22:18] Speaker 04:
So if the issue is,

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Does the reaction work differently?

[00:22:23] Speaker 02:
That's a non-sequitur.

[00:22:25] Speaker 02:
I mean, what's that have to do with a plant?

[00:22:28] Speaker 04:
Well, if there's no phytic acid, there can be no deposit on down the stream.

[00:22:33] Speaker 02:
Let me ask you a hypothetical.

[00:22:35] Speaker 02:
If phytic acid didn't exist, it wouldn't be a problem, would it?

[00:22:39] Speaker 04:
Correct, Your Honor.

[00:22:40] Speaker 04:
And both VITE and later US Waters propose the same solution to eliminate phytic acid from the ethanol processing fluid.

[00:22:49] Speaker 04:
Let me go to this question.

[00:22:50] Speaker 04:
The issue seems to be,

[00:22:52] Speaker 04:
Because VITE example was done in a glass beaker, somehow it's not indicative of what would happen in a metal tank.

[00:22:59] Speaker 04:
There is no evidence of that.

[00:23:01] Speaker 04:
And in fact, the evidence is just the opposite.

[00:23:03] Speaker 04:
How do we know that?

[00:23:04] Speaker 04:
We know that because US Waters patents, right, their proof of the fact that they can get rid of deposits with phytase was to perform an experiment in a test tube.

[00:23:16] Speaker 04:
They put phytase in.

[00:23:17] Speaker 04:
They look at the test tube.

[00:23:18] Speaker 04:
They said the test tube is clear.

[00:23:20] Speaker 04:
There's no precipitation, so therefore you're not going to get deposits.

[00:23:24] Speaker 04:
There's nothing in the US water patent that says you do something different in a plant.

[00:23:30] Speaker 04:
There's nothing in the US water patent that says you do something different with beer columns or metal or anything else.

[00:23:38] Speaker 04:
The other key point is in the US water's patent itself, it defines the unit of phytase to use.

[00:23:46] Speaker 04:
The phytase unit is defined by how much phytate

[00:23:50] Speaker 04:
It eliminates from the solution.

[00:23:53] Speaker 04:
Think about that.

[00:23:54] Speaker 04:
You're defining the unit by its efficacy.

[00:23:57] Speaker 04:
This is the FTY measure?

[00:23:58] Speaker 04:
Yes.

[00:23:59] Speaker 04:
And both patents have a similar definition.

[00:24:03] Speaker 02:
But the patents in suit have specific conditions disclosed.

[00:24:09] Speaker 04:
Those are exactly the same conditions that are used in example one.

[00:24:13] Speaker 04:
They're temperature, they are pH, and they are dosage.

[00:24:19] Speaker 04:
Those are the same conditions that are specified by VITE example 1.

[00:24:23] Speaker 04:
And as the district court found, the conditions in VITE example 1 are within the ranges that are disclosed in the US Water Patent.

[00:24:31] Speaker 04:
But the point I was getting to, Your Honor, is that if you're going to find the amount of phytate by how much phytase, by how much phytate it destroys, that amount cannot depend on whether you're doing the reaction in a metal tank or a glass beaker or a test tube.

[00:24:48] Speaker 04:
Right?

[00:24:49] Speaker 04:
Their own patent, by defining that unit, is confirming that the chemistry works the same wherever you're reacting it.

[00:24:57] Speaker 04:
Right?

[00:24:57] Speaker 04:
Otherwise, that is nonsensical.

[00:24:59] Speaker 04:
And it is consistent with the patent itself, which does the experiment in a test tube.

[00:25:05] Speaker 04:
You put it in this.

[00:25:06] Speaker 04:
If you want to see where this definition is, I can point you to it, but it's in the

[00:25:12] Speaker 04:
It's defined both in the VITE patent and in the US Waters patent.

[00:25:19] Speaker 04:
They both define them by the efficacy of the phytates in dissolving some amount of phytic acid.

[00:25:29] Speaker 04:
So their own units assume... Is that right?

[00:25:32] Speaker 03:
I thought it's the amount of enzyme that liberates a certain amount of inorganic orthophosphate per minute.

[00:25:38] Speaker 03:
So it's not defined in terms of...

[00:25:41] Speaker 03:
How much?

[00:25:43] Speaker 04:
Right, it's how much it dissolves per minute under these certain conditions.

[00:25:47] Speaker 03:
Right, but that's not necessarily tied to how much deposit there is going to be.

[00:25:53] Speaker 04:
No, what I'm saying is... That's an argument you made in the district... My argument is that the reaction, how effective the phytase is in removing phytate cannot depend on whether it's happening in a metal tank, in a plant, or in a beaker, because the unit that they define is based on this effectiveness.

[00:26:11] Speaker 04:
So the reaction has to work the same, but that definition doesn't make any sense.

[00:26:16] Speaker 04:
How can you use a unit that depends on whether you're in a metal tank or a plastic bucket?

[00:26:22] Speaker 02:
Let me ask you this.

[00:26:24] Speaker 04:
Yes.

[00:26:25] Speaker 02:
In the red brief at 16 and 17, you say that US water asserts that a material dispute of fact existed as to essentially

[00:26:39] Speaker 02:
are six remaining elements.

[00:26:45] Speaker 02:
I can go through the whole thing for you if you want.

[00:26:47] Speaker 02:
No, that's fine.

[00:26:47] Speaker 02:
Go ahead.

[00:26:50] Speaker 02:
Did they argue at the summary judgment stage that the prior art lacked several claim limitations?

[00:26:58] Speaker 04:
No.

[00:27:00] Speaker 04:
So let me be clear on this.

[00:27:02] Speaker 04:
In this case, it's a 4.5 pH, which is a non-issue because example one specifies 4.5 pH.

[00:27:09] Speaker 02:
Well, it goes to a number of elements, right?

[00:27:10] Speaker 04:
Right.

[00:27:11] Speaker 04:
But the only issue in this JMAW is the reduction of deposits, because that's the only issue that went to the jury.

[00:27:22] Speaker 04:
The lower court below found as a matter of law that all the other elements of the claims were met by Vi.

[00:27:31] Speaker 04:
And so the jury was not even asked or instructed to decide those elements.

[00:27:36] Speaker 04:
If US waters had an issue with that, the remedy was to ask for a new trial.

[00:27:41] Speaker 04:
But it's irrelevant to the JML for your honors today, because the only issue before the jury was the reduction of deposits.

[00:27:55] Speaker 03:
Can I ask you this question?

[00:27:59] Speaker 03:
If we were to conclude that the district court's JML was wrong,

[00:28:05] Speaker 03:
about this anticipation question.

[00:28:09] Speaker 03:
The blue brief ends by saying, reverse the JMAAL and reinstate the verdict.

[00:28:14] Speaker 03:
Your conclusion in your red brief is, don't reverse, affirm.

[00:28:21] Speaker 03:
Is there something left to be decided when that case returns?

[00:28:27] Speaker 04:
Yes.

[00:28:28] Speaker 04:
There's other post trial pending motions.

[00:28:30] Speaker 04:
So notice I move for a new trial.

[00:28:33] Speaker 04:
based on the arguments that US Water made that were contrary to the law, right?

[00:28:41] Speaker 04:
They argued and put on evidence that every embodiment in fight must reduce deposits.

[00:28:48] Speaker 04:
That was their case throughout.

[00:28:50] Speaker 04:
That was improper.

[00:28:51] Speaker 04:
We objected.

[00:28:53] Speaker 04:
We moved for a new trial on that grounds as well.

[00:28:56] Speaker 04:
The judge ruled that is moot, given the jay maul that he granted.

[00:29:01] Speaker 03:
The judge ruled on anticipation and obviousness.

[00:29:04] Speaker 03:
Was there a written description, J-MAL, ruled on?

[00:29:09] Speaker 04:
If I remember correctly, he only moved on the anticipation instead of everything else he's moved on.

[00:29:17] Speaker 04:
We can have a rule on obviousness.

[00:29:18] Speaker 04:
OK.

[00:29:20] Speaker 04:
You got it better than me.

[00:29:22] Speaker 04:
But I want to go back to the main point, which is the US Water's patent proves its efficacy in attest to.

[00:29:32] Speaker 04:
The experiment in VITE example one is a more precise experiment done under conditions that mirror what's done in a plant, that are based on the description of an ethanol processing plant that is figure one in VITE.

[00:29:50] Speaker 04:
And there was no evidence presented at trial that somehow the chemistry would work differently.

[00:29:55] Speaker 04:
In fact, Mr. Dorn says the basic chemistry works the same.

[00:29:59] Speaker 04:
The only argument at trial was the legally incorrect one, that example one doesn't prove that the smallest dosage necessarily works.

[00:30:09] Speaker 04:
That was their argument.

[00:30:11] Speaker 04:
They did not put on any expert evidence that would distinguish example one and say example one doesn't work because it's a metal tank instead of a glass.

[00:30:21] Speaker 04:
And so if you put aside that the legal arguments are just flat wrong and that they admit are wrong today,

[00:30:29] Speaker 04:
There is no evidence that VITE example 1 does not antistatic.

[00:30:35] Speaker 04:
That's exactly what the US Waters Patent did.

[00:30:37] Speaker 04:
It did it before, and it measures the result more precisely.

[00:30:43] Speaker 00:
I see my time is up.

[00:30:43] Speaker 00:
All right.

[00:30:44] Speaker 00:
Thank you.

[00:30:45] Speaker 00:
You have a little bit of rebuttal time left.

[00:30:48] Speaker 00:
Ms.

[00:30:48] Speaker 00:
Sundberger, we'll give her two minutes, please.

[00:30:52] Speaker 01:
Thank you, Your Honor.

[00:30:54] Speaker 01:
First, I want to say there's no evidence that any plant in the world

[00:30:58] Speaker 01:
Operates like invite example one opposing council said that it was it mirrored a plant and that it was the same conditions as in a plant It's not we have no evidence that any plant uses a precarification step at high temperatures like in example one There's fermentation of 96 hours.

[00:31:17] Speaker 01:
There's no evidence that any plant uses a fermentation step at 96 hours.

[00:31:23] Speaker 01:
It's usually 30 to 60 hours and

[00:31:25] Speaker 01:
And the pH of 4.5 that's discussed in the patent is the beer column and not in the mash.

[00:31:33] Speaker 01:
I would note that the NOVA Times expert did not say, nor did our experts admit, that the conditions of example one would ever, much less always, reduce deposits if applied in an actual fuel ethanol plant.

[00:31:48] Speaker 02:
No, what they said was, if it worked, it would do it.

[00:31:53] Speaker 02:
In other words?

[00:31:54] Speaker 01:
Yes.

[00:31:55] Speaker 01:
Circular.

[00:31:57] Speaker 01:
Circular argument, yes.

[00:31:59] Speaker 01:
Finally, I want to say, don't forget that it's Novozyme's birth, because it's not a fresh look at what the evidence is.

[00:32:11] Speaker 01:
Was there any reasonable basis here for the jury to find as it did?

[00:32:14] Speaker 01:
And we ask that the jury verdict be reinstated.

[00:32:17] Speaker 03:
Thank you.

[00:32:17] Speaker 03:
Do you agree that there are unruled on motions

[00:32:23] Speaker 03:
We were to reverse the JMO.

[00:32:26] Speaker 01:
I do agree there are unruled on motions.

[00:32:28] Speaker 01:
Obviousness and anticipation were the only thing.

[00:32:31] Speaker 01:
So I just want to go back to this metal tank.

[00:32:34] Speaker 01:
That's not the only difference, and that's not the issue.

[00:32:36] Speaker 01:
It's all of the other issues that I pointed out and our experts pointed out, between the differences between how a plan operates and what example one states.

[00:32:45] Speaker 01:
Thank you.

[00:32:46] Speaker 00:
OK.

[00:32:46] Speaker 00:
We thank both counsels, and please take over submission.

[00:32:50] Speaker 01:
All rise.