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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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We have three argued cases this morning.

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The first is number 19-1928, Big Baboon, Inc.

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versus SAP America.

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Mr. Wright.

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Good morning, everyone.

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Thank you.

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This case is a patent infringement case involving

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Big Badlands patent for enterprise software being asserted against SAP and HP for their systems that also are enterprise software related.

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The patent that was asserted was invalidated on the summary judgment motion by the district court under the Evans-Kuhlen doctrine for being on sale prior to more than one year earlier than the critical date.

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So... Your problem, Mr. Wright, it seems to me,

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is that you have these invoices which show a sale of the 3.1 version in 1996, October 1996.

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And the other side introduced declarations, expert testimony by individuals who said that those products sold in October 1996 were web enabled.

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And I don't see where you,

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produced any contrary evidence that would raise a genuine issue of material fact.

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Could you tell us where the contrary evidence is?

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Certainly, Your Honor.

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The contrary evidence was the declaration of Greenspun, which is a declarant of SAP, who made a declaration in a covered business method petition against the same patent at the Patent Office.

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And Greenspun states expressly in his

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What paragraph of his declaration are you relying on, counsel?

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I'm sorry, say again, Your Honor.

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What paragraph of his declaration are you relying upon?

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So this would be Appendix 1068 and 1069, where basically he says... Paragraph 59 is what you're talking about?

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Yes.

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where he basically says that the goal of putting web enablement was ultimately met by SAP and actually quotes another article saying that the Java-enabled suite, that would be the web enablement, is occurring thereafter in a controlled rollout immediately.

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Well, how then could it be on sale and in use in October 1996 and then being in a controlled rollout

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at the end of 1996 going into 1997.

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And so.

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Doesn't that same paragraph say that the web interface was available and that they were working on it in the early part of 1996?

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They were still working on it, but it wasn't fully web enabled.

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And again, this is the standard here is clearly convincing evidence at the summary judgment phase.

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So there's contradicting testimony from their own declarants on when they have full web enablement.

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Well, what about a contradictory?

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What paragraph, what sentence does he say is contradictory?

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I understand this affidavit, this declaration to be directed to the question of whether, of obviousness over the 3.0 version of this and not to address the 3.1 version.

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Where does he address the 3.1 version?

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So he literally says in that same paragraph I was quoting in from 68 to 1069, is he says, basically he does say that the web enabled 3.1, he talks about it expressly, and that the quote he has is that SAT formally unveiled R3 system 3.1, a Java-enabled suite of applications for conducting businesses on the web, and SAT controlled, that plans a controlled rollout of 3.1 immediately.

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And again, that's kind of, how would it be on sale in October of 1996?

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Even that article is before the critical date.

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Well, we don't know.

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That's the same.

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It could be December.

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That would be days before the critical date.

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But it says a plan to do it.

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And it says it in the future.

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So it's sometime thereafter.

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And the thing about Greenstone's testimony is it was done in a covered business method for students.

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And could he have said it was on sale?

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prior to the critical date, he would have.

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But he didn't.

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He never made a 102 argument.

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He made a 103 argument at the Patent Office.

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And so this is evidence.

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That's enough to debate some re-judgment that he didn't make the argument there that they're making now?

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Well, the key is, one, you have contradicting facts.

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You've got what Rodenkamper says, declarant of SAT in this case.

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And then you have what Greenspun said at the Patent Office.

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And they contradict on whether this is web-enablement.

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Isn't there a difference between a single sale, which could be enough for 102, and a full-scale rollout?

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Well, for whatever reason, they did not say full-scale.

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The key is web-enablement.

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And the district court, which doesn't discuss any of this, the district court does not mention

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the standard of clearance convincing does not mention 287, 35 USC 287, and does not mention Logan Campbell or Greenstone or why the district court believes one or the other.

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So you have this key issue.

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And unfortunately, for some reason, the district court got confused with the plaintiff arguing about the technical enablement, the web enablement.

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There's very detailed documents of what it takes to put the web tools into this to make web enablement.

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And that was in front of the court.

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And that was pledged because of the local rules of the Northern District of California.

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And that testimony is just not there.

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Robert Campert never says the technical and able-minded gifts.

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And so the district court.

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I'm trying to find out.

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I mean, we can sustain the district judge in a summary judgment case on any basis that's supported by the record.

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And your opponents are arguing that

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the on-sale bar is established by these invoices and the testimony that the invoices sold a web-enabled product.

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Now, you pointed us to this testimony of Greenspun.

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Is there any other testimony that you argue contradicts that showing?

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Well, that's also literature in the,

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Some of the SAP itself discusses at the end of 1996 how they are rolling out web enablement.

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That would be the manual of the R3 system.

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So, but.

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Did you have any specific testimonies that the product sold in October 1996 was not web enabled?

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I do not have specific testimony to that effect, but Greenspud's statement

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that it was not web-enabled until sometime after 1996.

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He doesn't say that.

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There is no statement.

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But he does say that at the end of 1996, there's a rollout of web-enabled R3.1.

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And that's contradictory.

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The summary judgment stage,

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to say, you know, we're going to believe Road and Camper and not Dreams Fund would be improper.

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This is Judge Urano, Counselor.

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It seems to me that maybe the statements that the Declan was making, Greenspan, corroborate more the dates on the invoices than anything else.

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Well, again, personally, the invoices are just hearsay with what's being shipped.

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So you do need

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evidence of what exactly is being shipped, not just somebody saying that it's 3.1.

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So, and again, the district court does not discuss it.

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There are business records, but they're not substantive.

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It says 3.1.

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Is that web enabled 3.1?

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We don't know.

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And so, there was.

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You have tested Robincamper that the sales involved a web enabled 3.1.

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So, Rogan Camper's testimony says that he did, that this is web enabled, but when we say, when the plaintiff put forth evidence of web enabled, what that means and the elements of that, the technical elements, not plain elements, technical elements that make it web enabled are not present and he never testifies that they are present in that system.

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There are five different technical components that go in there to make the accused device.

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And that, again, that was explicitly pled by the plaintiff.

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And the plaintiff then, once the plaintiff brought that up, the district court confused arguing technical elements versus claim elements.

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We weren't asking for a claim-by-claim comparison, the Java, the web interface, things like that.

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I mean, it wasn't just the invoices.

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There was lots of testimony.

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There were articles about how far they had come during the summer and how fast they were working.

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I mean, there was, against that, you have to raise a genuine issue of material fact.

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And all you have is a statement that refers to a full-scale rollout of something by the end of the year.

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So you want us to assume that that occurred in the last, that not a single sale occurred before the last eight days of the year?

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Well, it's not.

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So you have contradictory testimony, Your Honor, on that very point.

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You've got Greenspun saying one thing and you have Rogan campus saying something else on when web enabled technology existed.

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And the fact that SAP, which filed a re-examination against this patent, it did not kill claims 15.

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And it had evidence about web about 3.1 being on sale.

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Then SAP goes back to the patent office

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and tries to invalidate claim 15, I'm sorry, I made one of your unpatent with claim 15 and the covered business method doesn't bring up this sale.

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All of a sudden, 20 years later, they find, figure out that it's actually on sale as of October, 1996, when all of the evidence shows that it was probably on sale sometime in 1997.

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And again, this is at the summary judgment stage.

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This is not a, this is not a full adjudication.

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Counselor, this is Judge Durena again.

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Can you real quickly, I think you may even be out of time, but can you real quickly address the Evans Cooling case and the impact that has on the position you just articulated?

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So, yes, Your Honor, very quickly.

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Evans Cooling does apply, and the plaintiff never said it does not.

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That is the doctrine where if you achieve a product of infringement,

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If it's earlier than you, you're invalidating your patent because it would literally lead and the claims would go both ways on your patents.

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And so we've always maintained that the Evans pool and doctrine would apply.

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But the actual enabled 2.1 system, red enabled, was not on sale prior to our critical date in December.

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So I'll hopefully answer your question.

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Thank you.

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All right, Mr. Wright, do you want to save the rest of your time for rebuttal?

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Yes, Your Honor.

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Okay.

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Mr. Carraway.

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Yes, Your Honor.

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May it please the court.

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This case presents a highly unusual scenario.

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That's because patentees generally perform the due diligence to ensure that they do not accuse prior art of infringement.

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But a plaintiff is the master of its case.

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It chooses what products to accuse.

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And when the plaintiff overreaches by accusing of infringement of product that turns out to be prior art,

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This court's precedent in Evans Cooling is clear that the patentee bears the consequences of that choice and its accusation serves in his admission that the product meets all elements of the claims so that all the defendant need to do is show invalidity by proving that the accused product was in fact on sale before the critical date.

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Here, the district court followed Evans Cooling.

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It held big baboon to the consequences of its choice.

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Big Baboon repeatedly accused SAP's product named R3 Release 3.1 of infringement.

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And on summary judgment of invalidity, under Evans cooling, SAP did not need to show that any element of the claims was in the product.

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Instead, the only question was whether what Big Baboon had accused, R3 Release 3.1, was in fact on sale.

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And here the on sale evidence.

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Council, can you remind me what were the dates of the re-exam and the CBM proceeding?

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Yes, Your Honor.

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The re-exam proceedings were filed, I believe, in 2010 after the first case by Big Baboon had been filed in the central district of California.

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And the two, there were two re-exams because there were two patents, the parent patent to the asserted patent in this case, the 690, and the 275, which is the asserted patent in this case.

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And those re-examinations proceeded from around 2010.

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I believe the first one was completed around 2015.

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and the last one around 2017 or 18.

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And then the CBM on the 275 was filed in 2015 after the reexaminations were complete and this court had affirmed the patent offices finding that... What is your response to your friend on the other side who said,

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that you didn't raise this on sale issue.

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And if it's so clear, why would you have gone through all of those exercises without raising this question?

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Yes, Your Honor.

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There was a very good reason why SAP focused on what it did in the CBMs, which is the 3.0 ERT.

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And in particular, during the re-exam,

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The patent office found that the online documentation for 3.0e, the product before 3.1, that that online documentation disclosed all elements of claim 15 of the 275 patent, with the sole exception of the web enablement piece.

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That is because 3.0e was not a web enabled product.

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And because the patent office had already made those findings, it was a short put

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so to speak, to show that the web enablement piece would have been an obvious addition to what was already in existence and what the patent office had already found was present in the prior product.

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And as a result, SAP took that nucleus of PTO findings and then its expert, Dr. Greenspun, explained how adding a web enablement piece

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to what the patent office had already found.

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Right.

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I understand what he did.

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I understand what you did.

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But my question is, wouldn't it have been a shorter put to just say that that web-enabled feature existed in a product that was already on sale before the critical date?

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It would have been, Your Honor, except that that requires that SAP have documentation and other evidence to show that every element of the claim

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is in the 3.1 product and with a product that had just been launched on sale, and given that this was back in 1997, the documentary evidence was harder to come by.

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And in this case, what we did not have in the PTO during the CBM proceeding is what we had in front of the district court, which is repeated and specific allegations

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by Big Baboon that every single element of claim 15 was in R3 3.1.

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That is what the district court said made this case different from the PTO and that is, that formed the basis for invalidity in the district court.

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The on-sale evidence in this case was not genuinely disputed and it was thorough including contracts with SAP customers, the shipping records,

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testimony from Mr. Rogan Kemper, Ms.

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Fisher, Mr. Neuber.

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They not only provided the shipping records, but they also authenticated where they came from and where they were found in the system.

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Big Baboon did not bother to depose any of these witnesses.

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They did not dispute the genuineness of the documents.

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So SAP fully met its burden and the district court was right to grant summary judgment of invalidity.

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Now, Big Baboon seeks to end run this court's Evans cooling doctrine by characterizing an element by element comparison, which is not required, with what it calls a factual determination of the technical software elements required to create the accused product that the reply is for.

[00:18:03] Speaker 04:
And specifically, again, as the court noted in Mr. Reich's argument, the question that Big Baboon raises is whether R33.1 was fully enabled.

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Big Baboon did not make a distinction between R3 3.1 before the critical date and after.

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Big Baboon said that R3 3.1 did have web enablement, and that's at appendix 1924 to 25, which is the first amended complaint, and also in the infringement contentions.

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I'm sorry, the first amended complaint was at appendix 1248 and in the 3.1.

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Well, the court is not accusing the 1996 product of infringement.

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because that was before the patent issue.

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What Big Baboon accused was, quote, modified versions of R3 release 3.0e, which include web functionality.

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And then it said, those products include R3 release 3.1.

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Big Baboon?

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was under the assumption that R33.1 was not sold until after the critical date.

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That was a wrong assumption.

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And that is the same assumption that has been made in the other, in the cases in this court's precedent, Van Moore and Evans Cooling, where a plaintiff makes an accusation that a product infringement is infringing, and it assumes that it got the due diligence right and chose a product that was not prior art.

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When that assumption is wrong, that assumption is based on the patentee's choice and the patentee must live with those consequences.

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Now, should there be a way for Big Baboon to get around its accusation and try to show that what was sold pre-critical date didn't have the web enablement element?

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I question whether that's allowed under evidence cooling, but in any event, it doesn't matter here.

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Because even if there could be a way for a patentee to walk away from its broad allegations, that burden must be on the patentee to come forward with some evidence.

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Big Baboons failed to do so.

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All it has is speculation.

[00:20:22] Speaker 02:
But you don't even need evidence cooling in this case, do you?

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I mean, you put in undisputed evidence that the product, the web-enabled product was sold before the critical phase.

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Why do you need to rely on evidence cooling at all?

[00:20:39] Speaker 04:
Well, Your Honor, what we did not provide is a element by element comparison of the features of R33.1 and the claims.

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And could we have done that?

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Perhaps with digging through enough documentation and doing so, we could have done that.

[00:21:02] Speaker 04:
But at this stage of the case, the accusation by Baboon

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essentially filled in the claim chart for us.

[00:21:11] Speaker 02:
But they're only challenging web enablement.

[00:21:14] Speaker 02:
They're not challenging a failure to meet other claim limitations, right?

[00:21:19] Speaker 04:
I am not sure whether Big Baboon would agree with that.

[00:21:23] Speaker 04:
I know that Big Baboon does challenge the web enablement piece.

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And there was ample testimony in the record from Mr. Rogan Kemper that the same product that was sold pre-critical date and post-critical date, R33.1,

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had a web enablement aspect to it.

[00:21:45] Speaker 02:
OK.

[00:21:45] Speaker 02:
Anything further?

[00:21:46] Speaker 02:
Do my colleagues have any further questions?

[00:21:49] Speaker 00:
No, I don't.

[00:21:50] Speaker 01:
I do have a question.

[00:21:53] Speaker 01:
And under every scoring system, if a plaintiff identifies an increased product, if it says that that serves as an admission,

[00:22:06] Speaker 01:
that the teeth product meets all the limitations of the so-called claim.

[00:22:10] Speaker 01:
And I'm kind of concerned as to how restricted that seems to be.

[00:22:17] Speaker 01:
That's almost dispositive of the issue of invalidity.

[00:22:22] Speaker 01:
And I'm wondering if the identification of the tooth product actually serves as an admission, or does it raise perhaps a rebuttable presumption

[00:22:35] Speaker 01:
And I think if it raises a rebuttable presumption, then I wonder as to the, how appropriate it was to decide this on, on some of judgment.

[00:22:47] Speaker 04:
Yes, your honor.

[00:22:48] Speaker 04:
I'm the reading the Evans cooling case and the Vanmore case, which this court cited relying on Evans cooling.

[00:22:56] Speaker 04:
I don't see a, there's not a statement one way or the other, whether it's an admission, whether, or whether it's a presumption that is rebuttable.

[00:23:06] Speaker 04:
Um, I think the, the right answer to this is that it should be an admission and that is because patentees need to do the due diligence before they file a complaint and start a lawsuit.

[00:23:19] Speaker 04:
That said, even if it was rebuttable here, the district court got it exactly right because there was nothing that was rebutted.

[00:23:29] Speaker 04:
Big Baboon provided no evidence whatsoever that there was, that the, that the RF3 3.1 product

[00:23:35] Speaker 04:
was not web enabled prior to the critical date.

[00:23:39] Speaker 04:
The only evidence in the record was the rec was the evidence from Mr. Rogentemper and from even from Big Baboon's own citations to documents in the CPM and the Greenspun Declaration.

[00:23:54] Speaker 04:
All of those articles that it cites are pre-critical date and are corroborating, not contradicting the evidence of the shipping records,

[00:24:04] Speaker 04:
and of Mr. Rogan Kemper that R33.1 was web enabled when it was shipped in 1996.

[00:24:11] Speaker 04:
Okay.

[00:24:15] Speaker 01:
Thank you.

[00:24:16] Speaker 04:
And if there are no further questions, I would yield the rest of my time.

[00:24:19] Speaker 02:
Thank you.

[00:24:20] Speaker 02:
All right.

[00:24:20] Speaker 02:
Thank you, Mr. Carey.

[00:24:21] Speaker 02:
Mr. Wright?

[00:24:25] Speaker 02:
Yes, sir.

[00:24:26] Speaker 02:
So... How much time does Mr. Wright have left?

[00:24:31] Speaker 01:
Three minutes and 37 seconds.

[00:24:34] Speaker 03:
Okay.

[00:24:34] Speaker 03:
Thank you.

[00:24:36] Speaker 03:
So Your Honor, first and foremost, just to be clear, the mapping that was done by Greenspun in the covered business method petition, that literally mapped the entirety of the archery system onto Clone 15.

[00:24:50] Speaker 03:
That is how the plaintiff became aware of the infringement.

[00:24:53] Speaker 03:
And Greenspun said, and we actually did the last piece, web enablement, in 1997.

[00:25:00] Speaker 03:
Therefore, that shows it's obvious.

[00:25:02] Speaker 03:
So that's why the plaintiff and the defendant on the same page

[00:25:05] Speaker 03:
because basically the plaintiff is using defend-band phone mapping of claims for a certain sentiment.

[00:25:12] Speaker 02:
And I just wanted to add... Did he tell you that anything else was missing in the October 1996 sales other than web enablement?

[00:25:21] Speaker 03:
As far as we're aware, Your Honor, it would be that system, but for web enablement, that one element.

[00:25:27] Speaker 03:
That is the claim element.

[00:25:32] Speaker 03:
And I just wanted to also

[00:25:34] Speaker 03:
points to, I cannot remember, the ISP's handbook itself, that's SAP's own materials, it's more attendance at 12, so 2163 to 2164.

[00:25:45] Speaker 03:
That office says 3.1 wasn't available until the very end of 1996.

[00:25:50] Speaker 03:
So again, that shows evidence backing what Greenspan said about web enablement.

[00:25:55] Speaker 03:
And with that, unless there are any further questions, I would be at my time as well.

[00:26:02] Speaker 02:
OK, thank you.

[00:26:03] Speaker 02:
Thank both counsel, the case is submitted.