[00:00:00] Speaker 04:
I call the case is number 192255, BioRAD Laboratories Incorporated against 10X Genomics Incorporated.

[00:00:09] Speaker 04:
Mr. Rosencrantz.

[00:00:11] Speaker 03:
Thank you, Your Honor.

[00:00:12] Speaker 03:
Good morning, and may it please the court.

[00:00:15] Speaker 03:
I'd like to spend my time today on two issues.

[00:00:18] Speaker 03:
The first is the erroneous application of the doctrine of equivalence to vitiate claim language and reclaim territory that the inventor surrendered

[00:00:30] Speaker 03:
to get the patent approved.

[00:00:33] Speaker 03:
The second is the need to correct an egregiously flawed damages award, a huge 15% royalty, that was not in any way apportioned, and that was partly based on a reference license that the district court found to be not comparable.

[00:00:50] Speaker 03:
Starting with the equivalent issue, to overcome prior art, the inventors of the OA3 patent consciously

[00:00:59] Speaker 03:
narrowed their claim to require the microfluidic system with a non-fluorinated microchannel.

[00:01:08] Speaker 03:
The jury found that 10X's microchannels are fluorinated.

[00:01:13] Speaker 03:
BioRAD could not, therefore, invoke the doctrine of equivalence for two independent legal reasons.

[00:01:20] Speaker 03:
The first is vitiations.

[00:01:22] Speaker 03:
Simply put, an opposite cannot be an equivalent.

[00:01:28] Speaker 00:
We have many recent cases explaining that initiation is not just an independent concept.

[00:01:35] Speaker 00:
And the whole question is what exactly was the purpose of the amendment and therefore what is the defining scope of the amendment?

[00:01:50] Speaker 00:
So let me get you to those questions.

[00:01:54] Speaker 00:
First of all, but just I have a couple housekeeping questions.

[00:01:58] Speaker 00:
Aren't there two years of sales before the Kynar was added?

[00:02:03] Speaker 03:
That is correct, Your Honor.

[00:02:04] Speaker 03:
So this particular issue relates only to the subsequent sales, and there's another 083 issue that are about wholesale.

[00:02:15] Speaker 00:
Okay.

[00:02:15] Speaker 00:
And then I don't see any real dispute in the record as to whether the addition of the Kynar had any technological benefit or purpose.

[00:02:26] Speaker 00:
Is that right?

[00:02:28] Speaker 03:
Your Honor, there was a dispute in the record, but I would grant you that the jury was entitled to conclude that the two functions were the same, which, by the way, will be true in any doctrine of equivalence case.

[00:02:44] Speaker 00:
And so to get back to the... I know, but it wasn't... I think it went further than that, didn't it?

[00:02:48] Speaker 00:
I mean, your own witnesses said they knew of absolutely no benefit to adding it, right?

[00:02:55] Speaker 03:
Your Honor, I would...

[00:02:56] Speaker 03:
certainly the jury could have found that but the our own witnesses said that the kynarchic behaved better but they didn't isolate the benefit to the fluorination but if the jury could have found it doesn't that really answer the question it does not your honor the jury can always find doctrine of equivalent

[00:03:21] Speaker 04:
in a case in which either vitiations... But you said they could have found, and it's really quite a hurdle to say that two hundredths of a percent was a significant difference other than the context in which this material was added.

[00:03:41] Speaker 03:
Well, so, Your Honor, what I'm saying is this is a legal bar, both vitiations and prosecution history estoppel, if they apply

[00:03:51] Speaker 03:
prevent the question of equivalence from even getting to the jury.

[00:03:56] Speaker 03:
So to get to Judge O'Malley's question, yes, there are lots of cases that say you go to the purpose, but there are all of these cases that say that an opposite cannot be an equivalent.

[00:04:08] Speaker 03:
We cited five cases rejecting equivalence on that basis.

[00:04:12] Speaker 00:
How do you get past cadence where we specifically cautioned against

[00:04:16] Speaker 00:
basing the DOE inquiry on labels like antithesis or polar opposites?

[00:04:22] Speaker 03:
Well, Your Honor, we're not basing it on labels.

[00:04:26] Speaker 03:
What this court said was that certainly you cannot convert every doctrine of equivalence case into an on-off switch.

[00:04:36] Speaker 03:
Is the element present or is it not present?

[00:04:40] Speaker 03:
But when you have an antithesis, when you have

[00:04:45] Speaker 03:
a claim stated in binary terms, vitiation arises.

[00:04:51] Speaker 03:
And I would, Houston, to add, so in this case, would estoppel prosecution history, estoppel arise, which independently compels the same result.

[00:05:03] Speaker 03:
Now, the patentee chose to add non-flourinated as a claim limitation to overcome prior art

[00:05:12] Speaker 03:
that was fluorinated.

[00:05:13] Speaker 03:
I mean, they had a choice as to how they would actually couch the language of the claim.

[00:05:20] Speaker 01:
They could have... Mr. Rosenkrantz, what is the alternative or an alternative set of words that the applicant might have used to capture the notion that

[00:05:40] Speaker 01:
I think they were trying to capture or that you say they were trying to capture that there shouldn't be so much fluorine on the surface where a plug fluid might touch it as to cause a problem of stickiness.

[00:06:03] Speaker 03:
Well, so, Your Honor, I'm not saying that's what they were trying to achieve.

[00:06:10] Speaker 01:
But take that as an assumption.

[00:06:12] Speaker 01:
That's for the purpose of the question.

[00:06:14] Speaker 03:
So I'll give you two.

[00:06:16] Speaker 03:
They could have drafted claims that said microchannel sufficiently nonfluorinated to achieve X, or microchannels with less than X percent fluorine.

[00:06:27] Speaker 03:
What matters under this court's cases is what the inventors actually said and did.

[00:06:32] Speaker 03:
to overcome the eye of the choir art.

[00:06:35] Speaker 01:
And I guess the court's... But that's just not entirely true.

[00:06:40] Speaker 01:
The whole point of this somewhat mysterious, but nevertheless, precedential tangentiality exception to prosecution history estoppel is that there are some choices made by the applicant to narrow the claim that have a purpose to which

[00:06:59] Speaker 01:
the equivalent, or more precisely, the difference between the accused product and a literally infringing one is essentially tangential.

[00:07:08] Speaker 01:
So you can't just say they made the choice.

[00:07:11] Speaker 01:
It's always true that tangentiality is not giving full formal effect to the choice.

[00:07:22] Speaker 03:
I understood, Your Honor.

[00:07:23] Speaker 03:
So let me say two things.

[00:07:24] Speaker 03:
The first is that Pharmatech explains, and I'll quote,

[00:07:28] Speaker 03:
that the amendment may have needed more claim scope than necessary to overcome the prior art does not matter.

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Quote, the fact that the inventors may have thought after the fact that they could have relied on other distinctions is irrelevant to discerning the objective reason for the amendment.

[00:07:48] Speaker 03:
The objective reason for the amendment was to overcome the prior art.

[00:07:52] Speaker 03:
Whether the microchannels, to your honor's question about tangentiality,

[00:07:58] Speaker 03:
whether the microchannels contained fluorine was not peripheral to the conversation, it was the conversation.

[00:08:05] Speaker 03:
The inventors told the examiner that Quake's reference to fluorinated channel walls, quote, does not.

[00:08:12] Speaker 00:
No, the whole point was that with Quake, the carrier fluid and the walls

[00:08:20] Speaker 00:
didn't have different chemical properties and the whole point was to point out that what was being claimed were chemically distinct.

[00:08:29] Speaker 00:
So that you have to sort of look at the addition of the non-fluorinated microchannels in the context of adding at the same time the fluorinated surfactant to the carrier fluid, right?

[00:08:46] Speaker 03:
Again, they had the choice to narrow their claims and they made a strategic choice to go broader.

[00:08:53] Speaker 03:
I'm very conscious of that I'm running out of time to address an equally important question of damages.

[00:09:00] Speaker 03:
So let me just close this portion by urging the court to look at in such a form.

[00:09:07] Speaker 03:
which conveys a very clear example of what it means to be peripheral.

[00:09:13] Speaker 03:
When you're not even talking about the subject matter at hand that caused you to amend the claim, that's peripheral.

[00:09:20] Speaker 03:
But here they were talking about fluorination.

[00:09:24] Speaker 03:
So if I may turn to damages, a bio-reg expert cherry-picked the licenses with the three highest outlier rates in their record.

[00:09:34] Speaker 03:
to gerrymander a rate that was 15 times the rate paid for instruments in the only license on the same patent.

[00:09:42] Speaker 03:
We've briefed multiple flaws in this analysis, but I'll mention two today.

[00:09:46] Speaker 00:
But one of them is not admissibility, right?

[00:09:49] Speaker 00:
Because I didn't see any discussion of Daubert or admissibility issues.

[00:09:56] Speaker 03:
Your Honor, that goes to my second point.

[00:09:58] Speaker 03:
At a minimum, there needs to be a new trial because the district court conceded

[00:10:03] Speaker 03:
that one out of three of the licenses was not comparable.

[00:10:07] Speaker 03:
We do raise a doubt for challenge.

[00:10:10] Speaker 03:
We did raise it below.

[00:10:11] Speaker 03:
The analysis is exactly the same because the testimony was exactly the same.

[00:10:17] Speaker 03:
The expert did not narrow his testimony during trial.

[00:10:22] Speaker 03:
He covered the same exact ground.

[00:10:25] Speaker 03:
And to be clear on the second point that I'm making, the admission of that particular license,

[00:10:32] Speaker 03:
Once the court found that the license was not comparable, that means the jury should not have heard about it.

[00:10:39] Speaker 03:
And under Third Circuit law, BioRad has the burden of demonstrating that it is, quote, highly probable that the error did not affect the jury's verdict.

[00:10:49] Speaker 03:
BioRad doesn't even say that it can meet that standard.

[00:10:52] Speaker 04:
Is that the standard?

[00:10:54] Speaker 04:
Isn't the standard straightforward, substantial evidence?

[00:10:59] Speaker 03:
No, Your Honor, we are not, for this portion,

[00:11:01] Speaker 03:
We are not making a substantial evidence argument.

[00:11:04] Speaker 03:
There were three licenses introduced.

[00:11:06] Speaker 03:
One of them, the jury should not have heard.

[00:11:09] Speaker 03:
Because the jury heard it, that couldn't be the verdict.

[00:11:13] Speaker 01:
I'm sorry, just to be clear, this is the Applara Bio-RAD PCR Instruments License?

[00:11:18] Speaker 03:
Yes, Your Honor, and there are multiple reasons why that is the introduction of that evidence.

[00:11:24] Speaker 03:
that have affected the jury.

[00:11:26] Speaker 03:
First, OPLERA was the only license out of the three that applied such a high-rate instrument.

[00:11:32] Speaker 03:
Second, it was the only license... No, continue.

[00:11:35] Speaker 03:
Sorry, Your Honor.

[00:11:38] Speaker 04:
No, continue.

[00:11:38] Speaker 04:
Continue with the thought.

[00:11:40] Speaker 03:
And I'm hoping I can say just a few words on apportionment as well.

[00:11:44] Speaker 03:
Second, it was the only license with a straight to 2% rate.

[00:11:48] Speaker 03:
Third, BioReg's expert led with the OPLERA license when testifying about apportionment

[00:11:55] Speaker 03:
and fourth, Bio-RAD emphasized all three in its summation.

[00:11:59] Speaker 03:
If I may, Your Honor, just a few sentences on apportionment.

[00:12:06] Speaker 03:
Okay.

[00:12:06] Speaker 03:
This court's cases could not be clear that apportionment is required, and there's no dispute that the accused products reflect numerous innovations that TENX contributed.

[00:12:17] Speaker 03:
You can see them on page 15 of our opening brief.

[00:12:20] Speaker 03:
Now, on appeal, Bio-RAD asserts

[00:12:24] Speaker 03:
that so long as two technologies are essential to different products, they should be licensed at the same rate in both.

[00:12:32] Speaker 03:
You just can't do that.

[00:12:34] Speaker 03:
Laser Dynamics says that you can't do that.

[00:12:37] Speaker 03:
What BioRez did here is like saying a long life battery is important in a smartphone, and Wi-Fi capability is important in a laptop, so the royalty rates have to be equivalent.

[00:12:50] Speaker 03:
The asserted patents

[00:12:52] Speaker 03:
tweak the chemistry of droplets.

[00:12:55] Speaker 03:
But Bio-Rad's reference licenses are for very different technologies, like how to magnify DNA for detection.

[00:13:02] Speaker 04:
Are you saying you were prevented from arguing to the jury as to how they should view this evidence?

[00:13:11] Speaker 03:
No, Your Honor, we could argue to the jury.

[00:13:13] Speaker 03:
What I'm saying is that the evidence was both inadmissible because the expert failed to apportion it all.

[00:13:21] Speaker 03:
and that it was insufficient.

[00:13:23] Speaker 03:
The evidence FireRed did provide to the jury was simply qualitative, conclusory testimony.

[00:13:29] Speaker 03:
I urge the court to look at just two pages.

[00:13:33] Speaker 03:
I mean, it's really only two pages long.

[00:13:36] Speaker 03:
It's 30,074 to 75.

[00:13:38] Speaker 03:
Mr. Malachowski said little more than, trust me, I apportioned.

[00:13:45] Speaker 03:
He gave a formula.

[00:13:46] Speaker 03:
It's reproduced on page 66 of the Blue Breeze.

[00:13:50] Speaker 03:
But he never filled in any of the blanks.

[00:13:53] Speaker 03:
He says he got inputs from the technical expert, Dr. Sia, who says I didn't do apportionment or comparable apportionment at 29, 56.

[00:14:04] Speaker 03:
He says he got confirmation from Ms.

[00:14:06] Speaker 03:
Tumalo, but Ms.

[00:14:08] Speaker 03:
Tumalo, this is a BioRad executive, offered only the most superficial observations like BioRad did, quote, the heavy lifting.

[00:14:17] Speaker 03:
Or, quote, I would say by far the value in my mind was the quantum life.

[00:14:22] Speaker 03:
Or, Rain Dance provided the big idea for the licensed product.

[00:14:27] Speaker 03:
That's exactly the sort of superficial testimony that this court condemned in Cairo.

[00:14:34] Speaker 01:
Mr. Reznor, can I just ask you, what was your evidence on this particular question of the relative value of the patent covered

[00:14:44] Speaker 01:
technology and the other components of the products.

[00:14:49] Speaker 01:
Well, Your Honor, we... I know they have the burden, but get beyond that.

[00:14:53] Speaker 03:
Yes, yes, yes.

[00:14:54] Speaker 03:
We presented an expert who took the most comparable license and got it, which was the 1% for instruments and 3% for consumables.

[00:15:07] Speaker 03:
On the same exact patent, the only license on the same patent

[00:15:13] Speaker 03:
And he said that when you, a portion, you get down to about, you get down to three eighths of one percent for instruments and three quarters of one percent.

[00:15:24] Speaker 03:
And it's precisely, I'm sorry, for consumables.

[00:15:28] Speaker 03:
And it is precisely.

[00:15:29] Speaker 01:
And what kind of concrete components did that analysis have?

[00:15:38] Speaker 01:
Did he enumerate the other components and the risks involved and all so on?

[00:15:43] Speaker 03:
Yes, yes, your honor.

[00:15:45] Speaker 03:
And so on page 15 of our brief, you can see the list of other features that he evaluated.

[00:15:52] Speaker 03:
I mean, the Patterson suit had nothing to do with this enormously valuable single cell invention.

[00:16:03] Speaker 03:
which was the breakthrough of the year in 2018.

[00:16:07] Speaker 03:
And this list of five items, which was only the beginning of the list, shows all of the technological problems that TENEC found in order to create a device that doesn't simply do chemical reactions in droplets, which is what the patent system did, but actually

[00:16:29] Speaker 03:
takes the DNA from cells, isolates cells in particular droplets, and allows for analysis of particular genetic aspects of those cells one by one in the hundreds of thousands at a time.

[00:16:46] Speaker 03:
And so you simply cannot take a license that is about a completely different technology

[00:16:57] Speaker 03:
which is PCR technology, for example, and apply it to this very different technology on the practice suit, and... I think that there was some question as to whether it was completely different.

[00:17:13] Speaker 04:
I think, you know, let's not overstate.

[00:17:18] Speaker 03:
Well, Your Honor, again, I'll say the BioBRAD's reference flight pieces were for magnifying DNA for detection.

[00:17:26] Speaker 03:
That's what PCR does.

[00:17:28] Speaker 03:
And the product using the license technology, and ours, was about isolating bells in particular droplets.

[00:17:37] Speaker 03:
I mean, that is about as different as the licenses in laser dynamics where this court said, oh, come on, you can't just say it's about hard drives.

[00:17:48] Speaker 03:
Here, you can't just say it's about genetics, or I'm sorry, it's about droplets, or genetics and droplets.

[00:17:56] Speaker 03:
These are very, very different questions.

[00:17:59] Speaker 03:
And again, what he did in his testimony, it was literally two pages worth on apportionment without any of the inputs.

[00:18:08] Speaker 03:
So two pages on 30,074 to 75.

[00:18:12] Speaker 03:
And then just four pages later, one sentence and two pages later, one more sentence.

[00:18:21] Speaker 04:
Okay.

[00:18:21] Speaker 04:
Let's hear from the other side and we'll say some rebuttal.

[00:18:24] Speaker 02:
Thank you, Your Honor.

[00:18:27] Speaker 02:
Thank you, Your Honor.

[00:18:28] Speaker 04:
Mr. Reines.

[00:18:29] Speaker 02:
Thank you, Your Honor.

[00:18:30] Speaker 02:
Good morning.

[00:18:30] Speaker 02:
It's Ed Reines, and I know we're using a new system here, so please feel free to interrupt me at any point in time.

[00:18:36] Speaker 02:
I don't want to... I'm not being rude if I don't anticipate the interruption.

[00:18:41] Speaker 02:
On the... First of all, I want to do a reset on... Just because I know it could be helpful, that the 08-3 patent, the 1-9-3 patent, and the floor 7 patent all support the verdict.

[00:18:54] Speaker 02:
There is no, you know, no argument that if any one patent falls, therefore, you know, that the damage number, the royalty number doesn't take that into account.

[00:19:06] Speaker 02:
And the second argument that counsel didn't want to argue regarding the OA3 patent is, you know, we think it's an extremely meritless argument.

[00:19:14] Speaker 02:
So with respect to the OA3 patent, as Judge O'Malley correctly observed,

[00:19:18] Speaker 02:
That would only relate to just a couple of years of sales more recently.

[00:19:23] Speaker 01:
Just to be clear, are you saying that even if we concluded that infringement on the 08.3 had to be reversed, that upholding the infringement on the, it's a pair of method patents I guess, that that would independently support everything in the remedy?

[00:19:45] Speaker 02:
No, I guess the point being that there'd still be an infringement, then we have to go down for another trial for, you know, to calculate damages.

[00:19:52] Speaker 02:
And the reason being, as I think Your Honor just intuited, is that the 193 and 47 are just domestic infringement, whereas 083 is international.

[00:20:04] Speaker 02:
That's the distinction.

[00:20:05] Speaker 00:
Right, but what you were saying, as I understand it, and that was the question I opened with, is that there were several iterations

[00:20:13] Speaker 00:
before the KINAR was added that are part of the overall calculation, right?

[00:20:19] Speaker 02:
Exactly.

[00:20:20] Speaker 02:
Exactly.

[00:20:20] Speaker 02:
And not only that, I mean, and this goes to the subject of the KINAR.

[00:20:25] Speaker 02:
Just to be clear, I mean, it was added, you know, after claim construction as essentially the exact kind of manipulation that the doctrine of equivalence is designed to prevent, which was created in law offices.

[00:20:39] Speaker 02:
not in a laboratory, and it was designed precisely for what they called the quote-unquote intellectual property reasons.

[00:20:47] Speaker 02:
And it was an attempt to exploit the limits of language.

[00:20:52] Speaker 02:
And I think Festo and all the cases are clear that you look at the substance of what the distinction was.

[00:20:59] Speaker 00:
So, you know, first going to the fact that... Let me, let me, can I, I need to interrupt you because as long as you're on my housekeeping stuff.

[00:21:07] Speaker 00:
What about the injunction, though, as it relates to these paths?

[00:21:11] Speaker 00:
So say we were to affirm on OA3, but not on the other two, just hypothetically.

[00:21:18] Speaker 00:
OA3 is expired, right?

[00:21:22] Speaker 00:
No.

[00:21:23] Speaker 00:
No.

[00:21:23] Speaker 00:
Oh, OK.

[00:21:24] Speaker 00:
I thought it had.

[00:21:25] Speaker 02:
No.

[00:21:26] Speaker 02:
If OA3 is affirmed, then everything gets affirmed.

[00:21:29] Speaker 00:
OK.

[00:21:29] Speaker 02:
Period.

[00:21:30] Speaker 02:
That's one thing that's easy about this, is if OA3 is affirmed, which we believe it should be, then everything's affirmed.

[00:21:37] Speaker 02:
you know, after the arguments about damages and injunction and that kind of thing.

[00:21:43] Speaker 02:
You know, and on the injunction, I mean, they have now been selling their replacement product for, you know, close to a year, so that's, you know, a whole other thing.

[00:21:53] Speaker 02:
With respect to the factual question, you know, the CSO of 10X was questioned by me at trial, and he was explicit that he couldn't identify any technological benefit

[00:22:05] Speaker 02:
or any technological reason for adding the Kynar.

[00:22:10] Speaker 02:
The council's saying that somehow the record supports some improvement, you know, is really hand-waving.

[00:22:18] Speaker 02:
The chairman of the board, John Stupne, was the one that devised this as a venture capitalist, not a droplet scientist.

[00:22:26] Speaker 02:
And so I think just factually, I just want to correct that, there's no doubt that this was added for intellectual property reasons to try to

[00:22:36] Speaker 02:
work around it.

[00:22:37] Speaker 02:
They use the invention of the OA-3 patent.

[00:22:39] Speaker 02:
I think we can be sure of that on the substance.

[00:22:42] Speaker 02:
And this is an attempt to get around.

[00:22:43] Speaker 02:
Now, let me directly address the legal argument.

[00:22:46] Speaker 00:
Yeah, so the real question is, is it a brilliant attempt to get around?

[00:22:52] Speaker 02:
Well put, Your Honor.

[00:22:53] Speaker 02:
And with respect, because as long as we're clear, that's what's going on here.

[00:22:59] Speaker 02:
With respect first to the prosecution history, Judge Andrews lived this case probably more than he liked.

[00:23:06] Speaker 02:
And he dug into the prosecution history.

[00:23:08] Speaker 02:
This issue came up multiple times.

[00:23:11] Speaker 01:
Right, but just to be clear, I mean, the relevant prosecution history is two pages and it's a legal question.

[00:23:17] Speaker 01:
So no matter how many times anybody addressed it, we have to decide it afresh and there's a tiny bit of material that's relevant to it, right?

[00:23:26] Speaker 02:
This goes to the whole appellate versus district court in the sense that Quake was the primary reference that one time was being asserted and no longer is as invalidating and that's what was in the failed IPRs.

[00:23:42] Speaker 02:
the judge knew quake the quake reference in and out as to what was being distinguished in terms of the teflon coating on the inside of the channel wall so you're right in terms of the extent of the prosecution history but I just I don't think it would be fair to judge Andrews to suggest that having heard debates about no no but I guess my only point is no matter how many times the district court addressed the question we have to address the question and the standard is is de novo review so why is

[00:24:11] Speaker 01:
the argument about, and you have the burden on tangentiality, which is the one I guess I want to focus on.

[00:24:18] Speaker 01:
How have you established that putting in the word non-fluorinated is tangential to the purpose, I'm sorry, that it is tangential, the purpose of putting that in is tangential to that which makes the Kynar products not literally infringing?

[00:24:38] Speaker 02:
Understood.

[00:24:40] Speaker 02:
And the punchline was going to be with Judge Andrews.

[00:24:42] Speaker 02:
I thought he put it better than I could, which is that putting a de minimis amount of fluorine that has no effect is tangential to distinguishing a microchannel that's coated with Pestelon specifically to give it fluorinated properties.

[00:25:00] Speaker 02:
And to give something no fluorinated property is tangential to giving it fluorinated properties.

[00:25:05] Speaker 02:
To do something for intellectual property reasons

[00:25:08] Speaker 02:
that the word game is different from a technological distinction.

[00:25:12] Speaker 01:
Can I ask you this question?

[00:25:14] Speaker 01:
This confused me a little bit.

[00:25:16] Speaker 01:
When I looked at the evidence of Dr. Shia and the others, I thought there were two possible interpretations of what was being said.

[00:25:30] Speaker 01:
One was that the amount of the fluorine put in there

[00:25:35] Speaker 01:
simply made no change in the relevant functional property of trying to avoid adherence of that which you did not want to adhere.

[00:25:47] Speaker 01:
And the other possible interpretation is that the tiny amount of the fluorine was having no relevant interactive properties with the

[00:26:04] Speaker 01:
with the fluid that was flowing by.

[00:26:09] Speaker 01:
And those seem to me fairly different things.

[00:26:13] Speaker 01:
Which is it that you think the evidence establishes?

[00:26:18] Speaker 01:
Your Honor, I guess I'm just not sure I totally get the exact difference, but I think it had no... Well, suppose it might have been possible, right, that a gigantic amount of fluorine would have left the nonadherence property still in place.

[00:26:33] Speaker 01:
And at that point, I don't think there would be any question of tangentiality.

[00:26:39] Speaker 01:
So that I'm trying to figure out if the minimal percentage of the fluorine just had no interactive effects or whether you're talking about a purely functional, this doesn't make any difference.

[00:26:59] Speaker 02:
Both.

[00:27:00] Speaker 02:
I mean, it's de minimis, and that's again where I would go back to Judge Andrews.

[00:27:04] Speaker 02:
You know, I mean, he stated that it was de minimis, which I think is unquestionable on this record.

[00:27:08] Speaker 02:
And it's de minimis because it has no effect whatsoever in the system, technologically.

[00:27:13] Speaker 02:
I mean, I can say that in absolute terms based on Professor Sia's testimony and the absence of any response.

[00:27:20] Speaker 02:
I mean, their expert said zip.

[00:27:23] Speaker 02:
about what role it had or its relationship to the quake distinction.

[00:27:29] Speaker 02:
So it's completely tangential to add something that has no effect technologically whatsoever relative to a distinction of something that actually coats the wall with fluorine in order to precisely have an effect of creating an all fluorinated chemistry.

[00:27:48] Speaker 02:
And that's what the distinction was about, Your Honor's right, it's two pages, 1640, 1641, and that's clear.

[00:27:56] Speaker 02:
So in terms of what was disclaimed, right, I mean, the whole point, let's not lose sight, I mean, the whole point of Festo and the Tangential Relations is to figure out what was disclaimed.

[00:28:04] Speaker 02:
And what they were disclaiming was a system that didn't have the wisdom to avoid fluorinated characteristics in the walls.

[00:28:13] Speaker 02:
And so having, you know, absolutely de minimis, I mean, that's the whole point of doctrine.

[00:28:18] Speaker 02:
It just seems to me it would be unfair and distortion of the doctrine in order to say.

[00:28:27] Speaker 00:
What case, Mr. Reines, do you think is the best for you?

[00:28:34] Speaker 02:
I mean, I think each one's on its factual own, but I mean, you know, they gave the example of the situ form.

[00:28:40] Speaker 02:
I mean, I thought Festo was saying, you know, the Festo case itself in its articulation of the rule.

[00:28:47] Speaker 02:
of saying technologically relevant.

[00:28:51] Speaker 02:
not directly relevant is the language in FASTA with 344 F1369.

[00:28:56] Speaker 02:
But the in situ form, the argument that was, the real argument that's being made is we could have used functional language rather than just staying non-flourinated and assuming that someone would have, I mean, who foresees or anticipates that someone's going to come in and add an amount of the chemistry to change their system in the middle of the product being on the market that doesn't have any effect?

[00:29:18] Speaker 02:
I mean, who's going to anticipate that?

[00:29:20] Speaker 02:
And so in the sense of in situ form, they did have to change it from one cup down from multiple cups to one cup, but they did.

[00:29:31] Speaker 02:
And that's not a gotcha.

[00:29:32] Speaker 02:
And here, I think the real point that I'd leave this topic on is

[00:29:36] Speaker 02:
You can tell from the prosecution history what was being attempted.

[00:29:40] Speaker 02:
There's no ambiguity.

[00:29:42] Speaker 02:
They were trying to distinguish a truly fluorinated wall that had the properties associated with fluorine.

[00:29:49] Speaker 02:
And that's not what the walls that have with the 0.02% Kiner.

[00:29:54] Speaker 02:
Undisputedly, a de minimis amount is neither vitiate, means neither vitiates the requirement

[00:30:01] Speaker 02:
nor does it directly related to distinguishing the quake walls, which are dripping with Tesla.

[00:30:08] Speaker 01:
Can I ask you this, Mr. Ryan?

[00:30:10] Speaker 01:
Is the following a different from or in substance or just a different formulation of what you're saying?

[00:30:24] Speaker 01:
Might what you're saying be characterized as saying,

[00:30:27] Speaker 01:
The argument from the other side that non-fluorinated or fluorinated is binary is just wrong.

[00:30:34] Speaker 01:
As a claim construction matter, it was given a extremely almost binary claim construction, but the term for purposes of deciding the purpose of the amendment could be either simply about

[00:30:58] Speaker 01:
the presence of fluorine atoms, or it could also be about fluorine-caused properties?

[00:31:06] Speaker 02:
Perfectly put.

[00:31:08] Speaker 02:
Perfectly put.

[00:31:09] Speaker 02:
I mean, you know, if you could work around language that someone has to choose for claims like this, you know, it would be impossible, you know, especially once the products on the market and the claim construction order is issued.

[00:31:23] Speaker 02:
I mean, this is an attempt to exploit the claim construction issues

[00:31:27] Speaker 02:
you know, words like contaminant.

[00:31:28] Speaker 02:
And then they say, well, we did it intentionally, so it's not contamination.

[00:31:32] Speaker 02:
I mean, that's just a manipulation of the litigation process, Your Honor.

[00:31:37] Speaker 02:
So unless there's more questions, you know, let me just say briefly, you know, on a literal infringement, you know, I think the only reason the jury went with them is they had this argument based on the term contamination.

[00:31:48] Speaker 02:
that there was an intent requirement.

[00:31:50] Speaker 02:
I mean, it's explicit and we documented in the brief that they didn't have, that they intentionally included it in a contamination, something unwanted, bail for, it's not literal.

[00:32:00] Speaker 02:
I don't think there's any sustainable kind of construction that permits that.

[00:32:03] Speaker 02:
So I just, you know, whether you're looking at, you know, I think the DOE is firmly, strongly supportive of just stated, but I think literal is as well conscious, no matter how you dice it, this can't,

[00:32:15] Speaker 02:
shouldn't be permitted and certainly shouldn't be permitted to overturn a big expensive trial where it's only just a part of the sales for a couple of years.

[00:32:24] Speaker 01:
Can I shift you, if my colleagues are willing, to the damages discussion and the two issues just for what it's worth to make sure to address them that I guess I'm particularly interested in hearing about.

[00:32:40] Speaker 01:
One is the argument that the

[00:32:44] Speaker 01:
This report eventually concluded that the EPLERA BIORAD license was really not a sound basis for analysis.

[00:32:56] Speaker 01:
And I think the argument on the other side is given that conclusion, assuming admissibility has been preserved,

[00:33:05] Speaker 01:
It was your obligation to show that it could not reasonably have affected the jury's determination.

[00:33:11] Speaker 01:
You haven't made that showing, so a new trial is needed.

[00:33:14] Speaker 01:
And then the second point I guess I'd like you to address is the, what might be called the conclusory character of the apportionment testimony of, was it Mr. Malachowski?

[00:33:26] Speaker 01:
And in that regard, I'd like to just ask you to address

[00:33:30] Speaker 01:
whether the testimony of Eric Ginsburg, who I guess is the USC licensing guy, about just how much work still needed to be done in order to move from, what is it, the early 2000s when this patent was submitted to see if there was ever going to be a worthwhile marketable product.

[00:33:58] Speaker 01:
Why doesn't that point rather strongly in the direction of the percentage being rather lower than it is?

[00:34:10] Speaker 02:
Thank you.

[00:34:12] Speaker 04:
Please continue.

[00:34:14] Speaker 02:
Thank you, Your Honor.

[00:34:15] Speaker 02:
So, you know, there was a few questions there.

[00:34:18] Speaker 02:
You know, first of all, admissibility was not preserved.

[00:34:23] Speaker 02:
not in their opening brief.

[00:34:25] Speaker 02:
The word Daubert doesn't come in there.

[00:34:27] Speaker 02:
And with the quality of counsel on the other side, they would have used the word Daubert if they meant to reconsider that question.

[00:34:33] Speaker 02:
I think Judge Newman nailed it on the nose.

[00:34:35] Speaker 02:
This is a standard substantial evidence test on page 64, I believe it is, of the opening brief.

[00:34:42] Speaker 02:
That's what they say.

[00:34:43] Speaker 02:
They say what the basis was and that the jury verdict isn't supported.

[00:34:49] Speaker 02:
And so I don't think they have an evidentiary argument.

[00:34:53] Speaker 02:
The Summits 6 case had an issue where there was two licenses that supported the royalty rate and one went down and the court said that there was substantial evidence in the record.

[00:35:05] Speaker 02:
So I believe that applies.

[00:35:07] Speaker 02:
What I would say is if you look at the big picture, I think when you get down to these real specific legal arguments, sometimes you need to pull the lens back, which is

[00:35:17] Speaker 01:
Can I just ask you, if I look at page 56, for example, of the blue brief, the verdict should be vacated for that reason alone.

[00:35:27] Speaker 01:
It should also be vacated whether on sufficiency or admissibility grounds, because, et cetera.

[00:35:33] Speaker 01:
I mean, that's in the blue brief.

[00:35:34] Speaker 01:
It uses the word admissibility, and it seemed to me to be saying the analysis is the same, so we don't need to keep repeating both words.

[00:35:43] Speaker 02:
I think that would be very charitable.

[00:35:46] Speaker 02:
I mean, a work search does show that.

[00:35:47] Speaker 02:
I just don't think it's a developed argument.

[00:35:49] Speaker 02:
They didn't cite to the... I mean, they didn't evaluate... Again, it's 54.

[00:35:53] Speaker 01:
The opening paragraph of the section, the damages award should be vacated.

[00:35:57] Speaker 01:
The award should be vacated as based on evidence that was both inadmissible and insufficient.

[00:36:02] Speaker 01:
I mean, maybe they didn't preserve it in some other way, but unless you're saying that the substantive analysis

[00:36:12] Speaker 01:
is different between admissibility and insufficiency, and I don't quite see that you've made that argument.

[00:36:19] Speaker 01:
It seems to me they're making both points.

[00:36:21] Speaker 02:
Yeah, no, I do think it's a different standard because you can have multiple, for precisely this reason, that there's three licenses, so another one can be substantial evidence, and so just the failure of an evidentiary argument doesn't suffice.

[00:36:36] Speaker 02:
And then I just don't think they looked at the record in his opinion.

[00:36:39] Speaker 02:
I mean, you'd have to look at the judge's opinion in Daubert, which there was multiple of.

[00:36:42] Speaker 02:
And I just don't think that was analyzed.

[00:36:44] Speaker 02:
But let me move on.

[00:36:44] Speaker 02:
I mean, OK, that's the way you develop an argument.

[00:36:47] Speaker 02:
And it wasn't developed.

[00:36:48] Speaker 02:
But people might view that differently.

[00:36:51] Speaker 02:
Getting to the court-specific points, the Summit Six case, I think, showed where you don't have prejudicial error just because there's one piece of one of the licenses.

[00:37:01] Speaker 02:
But the bigger point is we have three licenses for basic nucleic acid platforms

[00:37:08] Speaker 02:
that had a 15% royalty, and their proposal was 1% on the other hand.

[00:37:15] Speaker 02:
And we had three experts testify all about this, Tumalo, Thea, and Malachowski.

[00:37:23] Speaker 02:
And so I don't think isolating one and just not looking at the overall picture of what they testified to is fair at all.

[00:37:29] Speaker 02:
Specific to the Eplera one, and I'll be quick,

[00:37:32] Speaker 02:
On the EPLERA one, that is a real-time PCR system, which is a platform for analyzing nucleic acids.

[00:37:40] Speaker 02:
It's for manipulating nucleic acids, and it involves the measurement function, as Ms.

[00:37:45] Speaker 02:
Tumelo stated.

[00:37:47] Speaker 02:
That is sufficiently similar to the platform of a droplet platform.

[00:37:51] Speaker 02:
At this point, they can't deny

[00:37:53] Speaker 02:
that they're using a droplet platform and that's where their reactions occur, in droplets.

[00:37:59] Speaker 02:
That's the whole basis for their platform.

[00:38:03] Speaker 02:
Moving to the Ginsburg testimony, I object to that as being considered now as an argument.

[00:38:11] Speaker 02:
It wasn't raised to trial.

[00:38:12] Speaker 02:
It wasn't raised before the district court when the district court affirmed the upheld verdict.

[00:38:18] Speaker 02:
It wasn't raised in the appeal briefs.

[00:38:20] Speaker 02:
But even so, yes, there's 85% contribution from other things.

[00:38:25] Speaker 02:
The important point on apportionment, from my perspective, is

[00:38:29] Speaker 02:
This isn't a case like a cell phone case where there was an entire market value argument and there's a big hustle and tussle about the relationship between the invention and the product.

[00:38:40] Speaker 02:
Here, the invention is a droplet product.

[00:38:43] Speaker 02:
And so in that light, there is no argument of an entire market value, which totally changes, I think, the apportionment analysis.

[00:38:52] Speaker 02:
On the apportionment analysis, Ms.

[00:38:54] Speaker 02:
Tumalo went through and she said, so the Caliper license,

[00:38:57] Speaker 02:
There was a ton of additional work that was done.

[00:39:00] Speaker 02:
And 10X was entitled to cross-examine all of these experts that addressed these issues.

[00:39:07] Speaker 02:
And you don't see any meaningful cross-examination in any of their briefs on that.

[00:39:12] Speaker 02:
And they could have tried to undermine them.

[00:39:16] Speaker 02:
You have a time trial.

[00:39:17] Speaker 02:
You present multiple experts on the topic.

[00:39:20] Speaker 02:
They cover the territory.

[00:39:21] Speaker 02:
If they really wanted to nitpick through, I think that's not fair.

[00:39:25] Speaker 02:
Now, the argument that was made

[00:39:28] Speaker 02:
You know, not the Ginsburg argument that we're hearing now, but the argument that was made was that that had to be quantitative.

[00:39:36] Speaker 02:
And I just think, Your Honors, please pull back the lens to what someone like Bayard has to do in putting the damages case together.

[00:39:44] Speaker 02:
You know, the willful infringement of their stuff.

[00:39:47] Speaker 02:
They have to go out.

[00:39:48] Speaker 02:
There's not a competitor license, because competitors don't license vital technology like this to each other every day.

[00:39:54] Speaker 02:
And then you have to go and find comparable stuff that involves the same parties, which we somehow miraculously did, and showed that there was a consistent pattern.

[00:40:04] Speaker 02:
And so then to go down and say, okay, well, you didn't quantitatively show all the different other contributors, nor was there a cross-examined attempt to undermine that.

[00:40:12] Speaker 02:
I think it's just unrealistic in this world.

[00:40:15] Speaker 02:
And we just, we shouldn't let the cell phone cases defeat, you know, a half billion dollar investment is in this case.

[00:40:25] Speaker 04:
Okay.

[00:40:26] Speaker 04:
Mr. Reines, as long as we're running over, there is a question which, which struck me.

[00:40:30] Speaker 04:
It wasn't raised by the other side.

[00:40:32] Speaker 04:
But in their brief they say that there is, they raised the question of the injunction and the importance of the product, the importance to the community and to the advancement of science and they say that therefore the permanent injunction was improper.

[00:40:54] Speaker 04:
Is this something that you agree is before us to consider?

[00:41:00] Speaker 02:
Yes, Your Honor.

[00:41:01] Speaker 02:
I do think those issues are before the court.

[00:41:04] Speaker 02:
I just think that there's this single-cell product where they have a new design that they've introduced, which is the vast majority of virtually all of their products, and they've replaced them, and they have new products for sale.

[00:41:16] Speaker 02:
They have an IPO.

[00:41:17] Speaker 02:
That's all in the record, and I don't think there's any significant argument where they have to redesign, that there's a public interest, because we're permitting

[00:41:26] Speaker 02:
sales onto those platforms.

[00:41:28] Speaker 02:
So no research is being stopped for that.

[00:41:31] Speaker 02:
With respect to the two other products, they didn't think they were significant enough to put a redesign out.

[00:41:36] Speaker 02:
And they didn't make, they didn't parse, you know, they only put a few sentences in their opening brief.

[00:41:40] Speaker 02:
That's probably because they were remodeled.

[00:41:43] Speaker 02:
And with respect to those two other products,

[00:41:47] Speaker 02:
If they didn't care enough to remodel them, even though they were given advanced warning by the district court that asked them what the status of their redesign was multiple times, then it shouldn't be something that's borne by BIRAD.

[00:42:05] Speaker 02:
We've permitted them to sell on any existing platform that already happened.

[00:42:09] Speaker 02:
to keep scientific research in continuity.

[00:42:13] Speaker 02:
And they've got redesigned products for the primary products they care about.

[00:42:19] Speaker 00:
Where is the competition exactly at this point between the two?

[00:42:24] Speaker 02:
Yeah, it's primarily in what's called single cell.

[00:42:30] Speaker 02:
It's primarily a single cell area.

[00:42:34] Speaker 00:
As to that, they've redesigned.

[00:42:36] Speaker 02:
They've got a product.

[00:42:39] Speaker 02:
They did a $300 million IPO a month after the injunction went into place.

[00:42:44] Speaker 02:
They have products that they're selling that they're declaring are great and better and all that.

[00:42:52] Speaker 01:
Why should the injunction reach, I guess, the four other products for which Bio-RED is not a rival?

[00:43:00] Speaker 01:
And as I understand it, there's no evidence that Bio-RED hasn't said

[00:43:06] Speaker 01:
Well, we're not offering those now, but we have some meaningful plans to offer them.

[00:43:13] Speaker 01:
In the absence of competition, why an injunction?

[00:43:16] Speaker 01:
And it's true that, or not true, but it may well be that the other side doesn't care about that.

[00:43:21] Speaker 01:
But nevertheless, we have a challenge to a five product injunction.

[00:43:27] Speaker 02:
Fair question.

[00:43:30] Speaker 02:
So let me direct it this way.

[00:43:31] Speaker 02:
So we're really talking about the single cell CNV and the linked reads.

[00:43:35] Speaker 02:
They have redesigned products for all the others.

[00:43:38] Speaker 02:
So I think one of the answers is because the product's available for the others.

[00:43:43] Speaker 02:
And so it's not

[00:43:44] Speaker 02:
there's no, the balance of harm, you know, goes completely towards BioRad because all these products weren't on its product map.

[00:43:53] Speaker 01:
Right, but before you get to balance of harm, how do you even get to the irreparable harm to BioRad on products that BioRad is not offering a rival to?

[00:44:08] Speaker 02:
Right, because they were all on the product roadmap.

[00:44:12] Speaker 02:
So Bio-Rad got completely, right, the individuals that started 10X left the company to start up 10X and stated that they weren't using droplets and went and did it and took the droplet expertise from Bio-Rad.

[00:44:28] Speaker 02:
So Bio-Rad fell behind and had a product map.

[00:44:31] Speaker 02:
So the district judge is trying to put them back somewhat in the place that they would have been if this willful infringement didn't happen because they would have pursued their product map without this, you know, primary competitor that had all their expertise.

[00:44:43] Speaker 02:
It's like a bigger picture issue.

[00:44:45] Speaker 00:
But can you do, when you say a bigger picture issue, wouldn't you have needed to have some kind of trade secret claim to support that?

[00:44:55] Speaker 02:
No, I just, the point being that by infringement they had a first mover advantage.

[00:45:02] Speaker 02:
And that first mover advantage warrants some leveling.

[00:45:07] Speaker 02:
But I just, with respect to the CNV and the Linked Reads product, I mean, I understood there's the balance of harms between the parties, okay?

[00:45:15] Speaker 02:
Let me just maybe do a better job this way.

[00:45:17] Speaker 02:
And with respect to that, there was irreparable harm because all of these products were and are on the product roadmap of BioAd, which was set forth behind.

[00:45:28] Speaker 02:
10X for those products,

[00:45:33] Speaker 02:
doesn't tell much of them at all, and didn't redesign them.

[00:45:38] Speaker 02:
So as between those parties, they had the opportunity for a year where the judge was saying, have you remodeled?

[00:45:44] Speaker 02:
Have you redesigned?

[00:45:45] Speaker 02:
What's the status?

[00:45:46] Speaker 02:
And they said, yes, we've redesigned.

[00:45:47] Speaker 02:
We're good to go in a January deposition of 2019.

[00:45:52] Speaker 02:
And so with respect to those vis-a-vis the parties, that's the situation, vis-a-vis the public interest,

[00:46:01] Speaker 02:
There's not a showing of significant sales and certainly I don't think the public interest, the public interest factor should be so strong that on a product that's a minor product of the infringer that where they haven't bothered to redesign when they haven't seen the other products, that the public interest overcomes an injunction when the install base is allowed to continue to do what they're doing.

[00:46:33] Speaker 02:
So the install base can continue to do what they're doing.

[00:46:35] Speaker 02:
It's just new people can't expand the infringement in the realm of proplet-based technology here.

[00:46:44] Speaker 02:
And then you get back to, if you're going to argue about the party interests, then you go back to the arguments I've already made.

[00:46:52] Speaker 04:
OK.

[00:46:52] Speaker 04:
Any more questions for Mr. Ryanes?

[00:46:57] Speaker 04:
No.

[00:46:57] Speaker ?:
No.

[00:46:58] Speaker 04:
Okay, all right.

[00:46:59] Speaker 04:
Thank you, Mr. Reines.

[00:47:01] Speaker 04:
So Mr. Rosencrantz, have your full rebuttal.

[00:47:04] Speaker 03:
Thank you, Your Honor.

[00:47:05] Speaker 03:
There was a lot to respond to in the very one presentation.

[00:47:09] Speaker 03:
Let me just start with one housekeeping matter.

[00:47:11] Speaker 03:
Mr. Reines keeps saying that if the 08-3 is affirmed, everything is affirmed, as Judge Taranto correctly points out.

[00:47:22] Speaker 03:
Mr. Reines conceded a win on the 08-3 whiteout international sale.

[00:47:28] Speaker 03:
Let me say just a couple of words on DOE.

[00:47:30] Speaker 03:
I'll be quick on the doctrine of equivalence.

[00:47:34] Speaker 03:
Ms.

[00:47:34] Speaker 03:
Reines keeps focusing on who came up with the change and what the intent was the Supreme Court has declared in Warner Jenkinson, and I quote, intent plays no role in the application of the doctrine of equivalence.

[00:47:48] Speaker 03:
As Judge Taranto pointed out, BioRad put in no proof of how a fluorinated microchannel is tangential

[00:47:57] Speaker 03:
to amendment that narrowed any microchannel to only fluorinated microchannels.

[00:48:03] Speaker 03:
So when Mr. Reiner says, who would have thought, I would just add that when the patentee decides to use words of exclusion, of course a person of skill in the art would immediately turn to adding fluorine.

[00:48:20] Speaker 03:
Quake was not just about coating with fluorine, it was specifically covering

[00:48:26] Speaker 03:
making a chip that had fluorine as an intrinsic element of the chip.

[00:48:32] Speaker 03:
On damages, first let me start with the Applara point.

[00:48:36] Speaker 03:
We said over and over in our opening brief that we are making both an admissibility and a sufficiency point at pages 29, 54, 56, and 58.

[00:48:48] Speaker 03:
We're asking the court to grant a new trial without the inadmissible Applara license

[00:48:54] Speaker 03:
which was necessary to support BioRed's entire theory of a 15% industry wide rate.

[00:49:02] Speaker 03:
We didn't have to do anything more than that because the experts said the same thing at trial and before trial.

[00:49:09] Speaker 03:
And the district court's Jamal opinion kept referring back to its own Daubert opinion to reach its conclusion.

[00:49:17] Speaker 01:
Can I ask, Mr. Rosencrantz, and I haven't gone back to look even if it's in the joint appendix, but the motion, the Daubert motion, the inadmissibility motion that you filed, and I'm not, I don't know if I'm going to ask this precisely right.

[00:49:34] Speaker 01:
I hope you can figure out what I'm trying to get at.

[00:49:38] Speaker 01:
Was the motion kind of broken down into this license is inadmissible, this one's inadmissible, this one's inadmissible, or was it a global Mr. Malachowski's testimony is inadmissible because it relies on a number of things, each of which, or collectively, raises a problem?

[00:50:03] Speaker 03:
Your Honor, we did the latter.

[00:50:05] Speaker 03:
We went license by license.

[00:50:07] Speaker 03:
uncomparability, and then we went back through them and made the same argument I'm making for this court today about apportionment.

[00:50:18] Speaker 03:
And Mr. Reines asked, what is a patent be supposed to do?

[00:50:23] Speaker 03:
This court has said what a patent is supposed to do.

[00:50:26] Speaker 03:
Apportionment has to start with the value of the patent to be licensed, the value of them in the licensed product.

[00:50:35] Speaker 03:
and the patented technology, not other technology.

[00:50:39] Speaker 03:
Firecrack experts admitted that there were other features of value with the page 30-39.

[00:50:45] Speaker 00:
Let me go back to your point that you said you'd argued this both ways.

[00:50:48] Speaker 00:
Now, you said it in passing a few times in your blue brief, but I never see a discussion anywhere where you contend that the district court abused its discretion by even allowing the jury to consider the license.

[00:51:02] Speaker 00:
You simply ultimately say it's not enough.

[00:51:05] Speaker 00:
I mean, the court did say that it was economically comparable, but at the end of the day, he was convinced that it's not sufficiently technologically comparable.

[00:51:18] Speaker 00:
But he put it to the jury, and you never said anywhere in your blue brief that that was an abuse of discretion.

[00:51:27] Speaker 03:
Your Honor, we stated the standard of review, which was an abuse of discretion standard of review,

[00:51:32] Speaker 03:
for admissibility.

[00:51:33] Speaker 00:
But you don't argue it that way anywhere in your blueprints.

[00:51:37] Speaker 03:
Well, Your Honor, it is an abusive discretion to admit a license when the license is not comparable.

[00:51:43] Speaker 03:
That's what Laser Dynamics does.

[00:51:46] Speaker 03:
This court has never required a defendant in a brief before this court to slavishly break out arguments between Daubert

[00:51:59] Speaker 03:
and deficiency when they are the exact same argument for both because the proof was the same for both.

[00:52:10] Speaker 03:
And just back to apportionment, Ciro says that there has to be some effort at quantification.

[00:52:19] Speaker 03:
Mr. Reiner says asking for quantification is too much.

[00:52:24] Speaker 03:
But there was literally no effort

[00:52:28] Speaker 03:
at quantification.

[00:52:29] Speaker 03:
Now, Lakowski's testimony about the applied bio license is a perfect example.

[00:52:35] Speaker 03:
He told the jury, I'm quoting from 30,081, I was able to confirm that the relative ratio would not be greater on the green circle than it was on the blue circle.

[00:52:46] Speaker 03:
We have no idea what the two circles were, or look at his testimony about the caliper license, his analysis boils down to

[00:52:54] Speaker 03:
Because the Caliper license quo focused on a very limited set of technologies, the apportionment within the license was comparable to the hypothetical negotiation.

[00:53:05] Speaker 03:
This court's had an X mark.

[00:53:07] Speaker 03:
You have to do more than that.

[00:53:08] Speaker 03:
You have to show the judge your work.

[00:53:11] Speaker 03:
You have to show the jury your work.

[00:53:14] Speaker 03:
And I'll just note to Judge Toronto's very first question, the Dow group license by license analysis is on page 17.

[00:53:24] Speaker 03:
There are no more questions about damages since Mr. Reiner said a whole lot about the injunction.

[00:53:37] Speaker 03:
If it's okay, I'd like to say just a couple of words about the injunction.

[00:53:40] Speaker 04:
Yes, do wrap up on the injunction.

[00:53:42] Speaker 03:
Yes, Your Honor.

[00:53:43] Speaker 03:
So these are really important instruments that serve a vitally important function in the scientific community.

[00:53:52] Speaker 03:
We cited to the court

[00:53:54] Speaker 03:
Many pages of testimonials by the scientific community about how important these products are for ongoing research.

[00:54:06] Speaker 03:
COVID being one of them, if you look at the most recent docket entries in the district court, these instruments needed to get an exemption from the injunction to do critically important COVID research.

[00:54:19] Speaker 03:
Marginal competition on one out of five product lines

[00:54:24] Speaker 03:
simply is not enough to justify an injunction.

[00:54:28] Speaker 04:
Well, that's limited to an injunction against this party as opposed to scientific research because I do think that that debate has gotten somewhat removed from the elaborate precedent that we have about using information in patents.

[00:54:49] Speaker 04:
So let's talk about the effect of the injunction on

[00:54:53] Speaker 04:
this party on your client?

[00:54:56] Speaker 03:
Well, so two answers.

[00:54:58] Speaker 03:
One is I was talking about the effect of the injunction on the public interest, which needs our instruments, the scientific community, which needs those specific instruments.

[00:55:09] Speaker 00:
But the existing scientific community is allowed to continue to use the instruments to the extent they were.

[00:55:15] Speaker 00:
And you've got design arounds with respect to any future desire, right?

[00:55:20] Speaker 03:
Well, so the people who bought an instrument, the early adopters in a very new technology, sure, they can continue their research.

[00:55:29] Speaker 03:
But we put in letters from scientists who were saying, there are these amazing discoveries that are being made using this instrument.

[00:55:39] Speaker 03:
I need to buy one of these instruments.

[00:55:41] Speaker 03:
And that is what that document... But you have a design around, do you not?

[00:55:46] Speaker 03:
We have a design around, but not for one of the product, not for two of the product lines, one of which is the subject of Dr. Carpenter's letter.

[00:55:55] Speaker 01:
I'm sorry, the two that you don't have a design around are for, are which?

[00:56:00] Speaker 03:
Are C and B and link reads.

[00:56:03] Speaker 03:
C and B was a very new product that was just beginning to break into the marketplace during trial.

[00:56:10] Speaker 01:
I'm sorry, and as to both of those,

[00:56:14] Speaker 01:
There's no BioRad offering either already in place or attested to as coming.

[00:56:21] Speaker 03:
There is no BioRad offering.

[00:56:22] Speaker 03:
There is no other instrument developed by anyone else that does those things.

[00:56:28] Speaker 03:
And to the other half of Judge O'Malley's question about harm to the parties, these are our only products.

[00:56:36] Speaker 03:
And these were pathbreaking products, BioRad

[00:56:42] Speaker 03:
as 9,000 products, this is 0.2% of their entire revenue stream.

[00:56:51] Speaker 03:
So the relative harm to the parties doesn't even compare from one company to the next.

[00:57:00] Speaker 03:
If there are no further questions, we respectfully request that the court reverse the judgment below.

[00:57:07] Speaker 04:
Okay, any more questions from the panel?

[00:57:10] Speaker 01:
No.

[00:57:11] Speaker 04:
Okay.

[00:57:12] Speaker 04:
Thank you.

[00:57:12] Speaker 04:
Thank you all.

[00:57:13] Speaker 04:
Thanks to both sides.

[00:57:14] Speaker 04:
The case is taken under submission and that concludes our telephonic conference for this morning.

[00:57:22] Speaker 02:
Thank you.

[00:57:23] Speaker 02:
The honorable court is adjourned from day to day.