[00:00:45] Speaker 01:
My name is Salvatore Rigo for Selectus, the appellant.

[00:00:50] Speaker 01:
For many years, scientists have been keeping laboratory records of potential inventions following very strict guidelines as to the form and maintenance of those records.

[00:01:00] Speaker 01:
The reasons for doing this are very simple.

[00:01:02] Speaker 01:
By following these strict guidelines, the scientists might be able to rely on these invention records as evidence under the business records exception.

[00:01:13] Speaker 01:
Otherwise, these records are considered hearsay.

[00:01:16] Speaker 01:
That is, a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted.

[00:01:26] Speaker 01:
However, according to the PTAT's decision, scientists do not need to follow these strict guidelines.

[00:01:32] Speaker 01:
Rather, all they need to do is have the scientist who generated these records testify about these records, and they become substantive evidence

[00:01:44] Speaker 01:
This is not the law.

[00:01:47] Speaker 01:
Rather, the FRE precludes PTAB's decision.

[00:01:54] Speaker 01:
To begin, nearly all of SCRI's documentary evidence is hearsay.

[00:01:59] Speaker 01:
First, they are statements according to FRE 801 because they are written assertions.

[00:02:05] Speaker 01:
Second, they were not made by the declarant while testifying.

[00:02:08] Speaker 01:
And third, they have been offered an evidence to prove the truth of the matter asserted.

[00:02:14] Speaker 05:
Well, that's what you're saying, and that's not what the board decision said.

[00:02:18] Speaker 05:
So we're reviewing the board decision as the question in front of us, not what your brief says.

[00:02:25] Speaker 05:
So the board first said, well, we're not relying on the lab notebooks, if you will, to prove the truth of it.

[00:02:34] Speaker 05:
We're relying on the statement by the declarants.

[00:02:37] Speaker 05:
And secondly, even if you're looking at the lab notebooks, they're being used to refresh the recollection, which is an exception to the hearsay.

[00:02:46] Speaker 01:
I think it would be fine to refresh the recollection, but that doesn't make the NOPA records evidence.

[00:02:51] Speaker 01:
It doesn't get them into the case.

[00:02:53] Speaker 01:
If we wanted to select us, the appellant wanted to get them into the case, we could introduce them.

[00:02:57] Speaker 05:
That's if you want to introduce them as an exhibit.

[00:03:00] Speaker 01:
Yes, we don't want to.

[00:03:01] Speaker 05:
They can be used by the declarant to refresh the recollection.

[00:03:05] Speaker 01:
They could certainly be used.

[00:03:07] Speaker 05:
As I read the board decision, the board decision said that's what they did.

[00:03:11] Speaker 05:
And that's what the red brief goes on

[00:03:14] Speaker 05:
On and on and on and on, pointing out where the witnesses saying this is refreshing, refreshing my recollection.

[00:03:22] Speaker 05:
So to me, you have two hurdles, one that the board decision says we weren't relying on that for the truth of the matter stated, which would mean it isn't hearsay at all.

[00:03:35] Speaker 05:
They're saying, or if it was, you're saying we're not relying.

[00:03:38] Speaker 05:
We rely on the declaration.

[00:03:41] Speaker 05:
And then to the extent that you're worried about here saying, they say, well, it's an exception because it's being used to reference the recollection.

[00:03:48] Speaker 01:
I think the problem with that is that's not what the decision does.

[00:03:51] Speaker 01:
The decision actually reproduces large portions of the laboratory notebooks.

[00:03:55] Speaker 05:
You're talking about the decision or the declaration?

[00:03:57] Speaker 01:
The decision itself reproduces parts of the laboratory notebooks

[00:04:03] Speaker 05:
I mean, it's fair enough, isn't it, for the board to characterize in its view what the declaration is saying.

[00:04:09] Speaker 05:
They're reproducing the declarant statement, taking the reference to show the notebook, right?

[00:04:19] Speaker 01:
Well, I think FRE 803 doesn't allow the declarant to bring that into their declaration.

[00:04:27] Speaker 05:
It is a- Although if the declarant had been sitting there testifying,

[00:04:33] Speaker 05:
And the declarant said, I'm a little hazy here.

[00:04:37] Speaker 05:
I did this, but I'm a little hazy on the details.

[00:04:39] Speaker 05:
I could certainly use a refreshment on my recollection.

[00:04:43] Speaker 05:
And our counsel hands her the notebook, not as an exhibit, but hands her the notebook and said, well, if you look at this page, does that refresh your recollection?

[00:04:53] Speaker 05:
You would have no objection to that, right?

[00:04:55] Speaker 01:
I think that would be a fair use of the document, yes.

[00:04:58] Speaker 05:
So why isn't that what happened here?

[00:05:00] Speaker 01:
It's not what's happened here because they've actually

[00:05:03] Speaker 01:
the actual laboratory notebook into the declaration, which has now ended up in the decision.

[00:05:10] Speaker 01:
And basically, what we're looking at here is prior consistency.

[00:05:13] Speaker 05:
So it's a form over substance case?

[00:05:15] Speaker 01:
I think there's a lot of form problem here.

[00:05:18] Speaker 01:
Yes, absolutely.

[00:05:19] Speaker 01:
Would it have been OK for the declarant to say, this is what I remember?

[00:05:26] Speaker 01:
Yes.

[00:05:26] Speaker 01:
But that's not what the declarants did.

[00:05:28] Speaker 01:
The declarants say, this is what my laboratory notebook says.

[00:05:33] Speaker 01:
And that's not the evidence.

[00:05:35] Speaker 01:
However, there's numerous, there's over 100 different exhibits.

[00:05:39] Speaker 05:
Well, the declared stated, I reduced the invention to practice on such and such a date.

[00:05:45] Speaker 05:
Yes.

[00:05:45] Speaker 05:
And then they say, here are the details that refresh my recollection as to that statement.

[00:05:50] Speaker 01:
And it gives the appearance as if there is a lot of evidence to support that.

[00:05:53] Speaker 05:
And you didn't cross-examine any of that?

[00:05:55] Speaker 01:
We can't cross-examine the laboratory notebooks, no.

[00:05:59] Speaker 01:
We can only cross-examine what they said about them.

[00:06:03] Speaker 01:
Yes.

[00:06:04] Speaker 02:
Well, even if you're right that to the extent that the declarant was relying

[00:06:10] Speaker 02:
on a particular document, a lab notebook for his testimony, maybe that's inadmissible, but there was a lot of testimony that wasn't specifically simply adopting their lab notebook.

[00:06:23] Speaker 02:
So I think one of the problems you have in my mind is even if you're right, and I agree with you on the hearsay with regards to the lab notebook,

[00:06:30] Speaker 02:
There's a lot of other evidence here that creates the substantial evidence for the fact-finding.

[00:06:35] Speaker 02:
Not everything is out.

[00:06:36] Speaker 02:
The whole declarations are not out.

[00:06:39] Speaker 02:
Only the portions which rely on the hearsay.

[00:06:42] Speaker 01:
Let's just look at the declarations.

[00:06:44] Speaker 01:
If we actually go through and look at each of the declarations, there's two declarations that came in from inventors and there's two declarations that came in from corroborators.

[00:06:54] Speaker 02:
Yeah, Dr.

[00:06:55] Speaker 02:
Koringa?

[00:06:57] Speaker 02:
Koringa.

[00:06:58] Speaker 02:
And Jar-Jar?

[00:07:00] Speaker 01:
Jar-Jar.

[00:07:00] Speaker 02:
Jar-Jar.

[00:07:01] Speaker 02:
Okay, because it sounded to me like something out of a Star Wars movie.

[00:07:04] Speaker 02:
You know, for a minute there I was trying to wrap my head around these names.

[00:07:08] Speaker 02:
Go ahead.

[00:07:08] Speaker 01:
And there's one more, there's one more declarant who's an expert who says, who simply testifies about what the laboratory notebook means.

[00:07:16] Speaker 01:
So that's 100% virtually hearsay.

[00:07:18] Speaker 02:
But Drs.

[00:07:19] Speaker 02:
Koringa and Jar Jar, sorry if I'm mutilating these names, they both testified completely different from the lab notebooks.

[00:07:28] Speaker 02:
One testified that, I think it's a she, did her own lab experiments after learning about the invention, right?

[00:07:35] Speaker 02:
Didn't she?

[00:07:36] Speaker 01:
She says that she did some experiments, yes.

[00:07:39] Speaker 01:
She did not say that she reproduced

[00:07:41] Speaker 01:
the reduction to practice.

[00:07:42] Speaker 02:
And then Dr. Jar Jar said he supplied materials for the lab tests, right?

[00:07:48] Speaker 01:
He says that he did provide something for one of her experiments, yes.

[00:07:52] Speaker 02:
So why isn't that correct?

[00:07:55] Speaker 02:
I mean, corroborating evidence doesn't have to be independently of its own accord the evidence that could otherwise establish a reduction of practice.

[00:08:03] Speaker 02:
It just has to corroborate.

[00:08:05] Speaker 02:
I mean, that's why, for example, we've had cases

[00:08:08] Speaker 02:
where when the inventor says, I built this, I reduced the practice on such and such a date, and then he introduces receipts showing that he had purchased the products in advance, right?

[00:08:17] Speaker 02:
That just tells us he bought the products.

[00:08:19] Speaker 02:
It doesn't necessarily say he put it all together that day, but we've held that to be enough

[00:08:24] Speaker 02:
to satisfy the corroboration requirement.

[00:08:26] Speaker 02:
So why isn't this testimony, which has nothing really to do with the lab notebooks and the hearsay, independently sufficient to uphold the board decision?

[00:08:34] Speaker 01:
Well, I think it does have to do with the laboratory notebooks, but the laboratory notebooks is what's being relied on as the reduction to practice.

[00:08:41] Speaker 02:
Now, Dr. And... Oh, the inventors also testified to the reduction of practice.

[00:08:45] Speaker 01:
They testified, the inventors testified that they reduced to practice, yes.

[00:08:49] Speaker 01:
Now, let's just take that they have testimony that says that, yes.

[00:08:52] Speaker 02:
So you have the inventor testimony

[00:08:54] Speaker 02:
is what is the actual evidence, then you just need corroboration thereof, and you have these two independent scientists.

[00:09:02] Speaker 02:
Why isn't that sufficient?

[00:09:03] Speaker 02:
Even if you're 100% right, it seems to me that there's a lot of evidence in this record, even if the board maybe didn't get all of the rules of evidence with regards to the lab notebooks, right?

[00:09:15] Speaker 01:
I think there isn't a lot of evidence in this.

[00:09:17] Speaker 01:
If you take out all of what was relied on,

[00:09:21] Speaker 01:
in the decision in terms of documentary evidence.

[00:09:25] Speaker 01:
If all of that comes out as hearsay, which I think it should, then what you have is you have the declarations of the inventors

[00:09:32] Speaker 01:
If you take out all of their statements that reference one of these hearsay exhibits, there is nothing left in their declarations.

[00:09:39] Speaker 02:
On A33 and A35 of the board opinion, they expressly recognize and cite Coringa's testimony and Jarjor's testimony.

[00:09:47] Speaker 02:
Yes.

[00:09:47] Speaker 02:
So it isn't just the lab notebooks that they rely on for corroboration.

[00:09:51] Speaker 02:
They specifically cite these others.

[00:09:53] Speaker 02:
So I have to look at the record as a whole and say, does it support what the board concluded?

[00:09:59] Speaker 02:
These are specifically things they cited.

[00:10:02] Speaker 01:
Yes, but these two corroborators are also citing the same group of hearsay evidence that has to come out.

[00:10:11] Speaker 01:
Again, if all of their reference is to the hearsay.

[00:10:13] Speaker 01:
Not entirely.

[00:10:14] Speaker 01:
Not entirely, but if you excel.

[00:10:16] Speaker 05:
It seems to me, which I had trouble in the beginning grasping, it seems to me that your appeal is in two flavors.

[00:10:22] Speaker 05:
There is a question about whether or not the declarants testimony was corroborated, which has to be, right?

[00:10:29] Speaker 05:
And I think, personally, I think you got a potentially a weaker case there because there is some evidence independent of lab notes going towards corroboration.

[00:10:39] Speaker 05:
And it's an all things considered type test, right?

[00:10:42] Speaker 05:
But I finally appreciated what I thought was your lead argument, which is the declarations have to be thrown out.

[00:10:49] Speaker 01:
Yes.

[00:10:49] Speaker 05:
In which case, the whole case collapses.

[00:10:51] Speaker 05:
There's nothing to corroborate.

[00:10:53] Speaker 05:
And you're saying that declarations have to be thrown out because you

[00:10:59] Speaker 05:
frankly, don't believe the declarant when the declarant is saying, I reduced the practice without reference to my lab note.

[00:11:08] Speaker 05:
You're, in essence, saying that it wasn't a refreshing or recollection.

[00:11:12] Speaker 05:
It was using the lab notes to testify as to the truth of what they did historically at that point in time.

[00:11:18] Speaker 01:
Yes, I think that's exactly what it is.

[00:11:19] Speaker 05:
Your theory is that when you excise the inventor's declarations, the case collapses.

[00:11:27] Speaker 05:
And so seeing to me, that's where I think you've got a weaker case from my perspective on corroboration because there is some evidence wholly independent of the lab notebooks from people saying, I was two seats down.

[00:11:41] Speaker 05:
I saw what was going on.

[00:11:43] Speaker 05:
And we are allowed under the law to create a penumbra, if you will, of touchy feely what's going on.

[00:11:52] Speaker 05:
for the reduction of practice for corroboration, but we don't have that same touchy-feely requirement in your view when we assess the quality of the declarations.

[00:12:04] Speaker 05:
Have I got your argument?

[00:12:05] Speaker 05:
I mean, that's what you're really talking about?

[00:12:07] Speaker 01:
Yes, exactly.

[00:12:08] Speaker 03:
Okay, thank you.

[00:12:19] Speaker 03:
Good afternoon, and may it please the court, Tony Figg for Seattle Children's Hospital.

[00:12:26] Speaker 03:
Dr. Guiazza's declaration, which is really what's at issue here, affirmatively stated that she conducted the reduction to practice experiments in April and May of 2010.

[00:12:38] Speaker 03:
She described those experiments in great detail in her declaration.

[00:12:43] Speaker 03:
She reproduced pertinent parts.

[00:12:45] Speaker 05:
So when she described it in great detail, she did it with cross-reference to the notebooks.

[00:12:50] Speaker 03:
And I don't know why there is some rule against doing that.

[00:12:54] Speaker 05:
Am I right?

[00:12:55] Speaker 03:
Yes.

[00:12:55] Speaker 05:
So we're just on the same playing field.

[00:12:57] Speaker 05:
She had a general statement in her declaration on such and such a historic date.

[00:13:03] Speaker 05:
I reduced the invention to practice.

[00:13:06] Speaker 03:
Well, it was more than a general statement.

[00:13:08] Speaker 05:
I took step one.

[00:13:09] Speaker 05:
Look at the notebook.

[00:13:10] Speaker 05:
I took step two.

[00:13:11] Speaker 05:
Look at the notebook.

[00:13:12] Speaker 05:
I took step three.

[00:13:13] Speaker 05:
Look at the notebook.

[00:13:14] Speaker 02:
Why don't you just direct us straight to the declaration?

[00:13:16] Speaker 02:
Make it easier on yourself.

[00:13:18] Speaker 02:
Go to the declaration.

[00:13:20] Speaker 03:
I'm sorry.

[00:13:20] Speaker 03:
Say that again.

[00:13:21] Speaker 02:
Go to the declaration.

[00:13:23] Speaker 03:
Yes.

[00:13:23] Speaker 03:
Well, the declaration.

[00:13:25] Speaker 02:
Not yes, well.

[00:13:26] Speaker 02:
Open the declaration up.

[00:13:28] Speaker 02:
Tell us what paragraph to look at.

[00:13:30] Speaker 02:
Tell me where she said, I reduced it to practice on such and such a day.

[00:13:36] Speaker 03:
Well, she said that she reduced to practice in April and May of 2010 at appendix pages 8475 through 88.

[00:13:44] Speaker 03:
I mean, this was a lengthy testimony.

[00:13:47] Speaker 03:
She reproduced the computer readouts from the instrument in which she measured the results on page 8477.

[00:13:56] Speaker 02:
On page 8475, which is where you sent me to, tell me what she said.

[00:14:11] Speaker 03:
What she says, and I'm looking for that in the appendix.

[00:14:17] Speaker 03:
What paragraph?

[00:14:18] Speaker 02:
No, I don't want you to summarize it.

[00:14:20] Speaker 02:
I want you to read it to me.

[00:14:22] Speaker 02:
I want to talk to you about what's in the appendix.

[00:14:30] Speaker 03:
So paragraph 17.

[00:14:32] Speaker 03:
In these experiments, ICE-1 and TREX-2 were expressed on different vectors when delivered in HEK cells.

[00:14:41] Speaker 03:
For example, in the fourth sample... Okay, but that doesn't say when, so where's the when?

[00:14:47] Speaker 05:
I'm sorry, Your Honor, I'm having trouble... Are those experiments referring to the seven that are listed above?

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

[00:14:54] Speaker 05:
And the seven that are listed above are from page 17 of the lab notebooks?

[00:14:58] Speaker 03:
Yes.

[00:15:01] Speaker 03:
But, Your Honor, I think if I can just add... I mean, that's saying in these experiments, i.e.

[00:15:06] Speaker 05:
the experiments that are reflected in my lab notebook,

[00:15:12] Speaker 03:
Yes, we don't dispute she referred to her lab notebook.

[00:15:17] Speaker 03:
But here's the part I think is important.

[00:15:19] Speaker 05:
But I think Judge Moore and I, and I recollect that there is something in the declaration where, independent of reference to the lab notebooks, she said, I reduce the invention of practice on such and such a thing.

[00:15:36] Speaker 03:
She testified with reference to her lab notebook, but she had separate affirmative statements that she combined these two enzyme activities.

[00:15:49] Speaker 02:
Can I ask you, I've never ever ever asked for this before, but you are you a member of our bar?

[00:15:55] Speaker 02:
Can you stand up next to him?

[00:15:57] Speaker 02:
Will you tell me, because you seem to know the record better.

[00:15:59] Speaker 02:
And it's not uncommon.

[00:16:01] Speaker 02:
People hire an experienced person, but then a younger person knows the record.

[00:16:05] Speaker 02:
Don't take this insultingly.

[00:16:07] Speaker 02:
Where is what I'm looking for?

[00:16:08] Speaker 00:
Yes, Your Honor.

[00:16:09] Speaker 00:
On paragraph 25, which is on APPX 8478,

[00:16:15] Speaker 00:
There's a statement from Dr. Gwiazda that based on the data she collected on April the 12th, 2010, she understood that the activity of endonuclease that cleaved at the selected nucleic acid sequence is coupled with the activity.

[00:16:28] Speaker 02:
Thank you.

[00:16:28] Speaker 02:
That's what I'm looking for.

[00:16:29] Speaker 02:
Do not be mad at him.

[00:16:31] Speaker 02:
Be appreciative later.

[00:16:32] Speaker 00:
No, no.

[00:16:33] Speaker 03:
I'm appreciative of that.

[00:16:34] Speaker 02:
OK.

[00:16:34] Speaker 02:
All right.

[00:16:34] Speaker 02:
But I think I made him do it.

[00:16:37] Speaker 03:
And I appreciate you're doing that, Your Honor.

[00:16:39] Speaker 03:
But I would also like to say this.

[00:16:41] Speaker 03:
She reproduced in her declaration

[00:16:45] Speaker 03:
These experimental procedures and results from her laboratory notebook, she took those from her notebook, put them in the declaration.

[00:16:55] Speaker 03:
She swore that her declaration was based on her personal knowledge.

[00:17:00] Speaker 03:
She swore that the statements made in her declaration were true.

[00:17:04] Speaker 03:
The board said, we are basing our decision on her in court or in proceeding

[00:17:11] Speaker 05:
Testimony which is not hearsay or then went on to say that she was in essence You heard my discussion with your colleague that the board was saying she in essence was refreshing her recollection as she wrote her declaration by reference to the lab notebooks Yes, and and rule 612 allows that's the board sort of saying well to the extent that you're

[00:17:36] Speaker 05:
to the extent that you're not happy with paragraph 25 as a sufficient declaration as to the truth of the matter of reduction of practice.

[00:17:47] Speaker 05:
The board was saying in that case, to the extent that you're troubled by the specific details related to by the lab notebooks, that was refreshing her recollection.

[00:17:58] Speaker 03:
Yes.

[00:17:58] Speaker 03:
And the board made that point and referred to rule 612.

[00:18:05] Speaker 03:
I don't really think there is a dispute among the parties that a witness is entitled to refer to her documents.

[00:18:12] Speaker 05:
Well, that's why I was asking whether this is a form over substance case.

[00:18:15] Speaker 05:
If the case had been that she simply came in and all she had was paragraph 25 in her declaration, and the other side got up and said, that's pretty skinny, and she says, well, golly, if I could only refresh my recollection, I could help you out a lot, in which case you would whip out the lab notebooks

[00:18:33] Speaker 05:
And she would refresh her recollection.

[00:18:35] Speaker 05:
And we would end up with exactly the same record we have in front of us now.

[00:18:38] Speaker 03:
I think that's true.

[00:18:39] Speaker 03:
But I also think a witness is entitled to say, here is a document where I recorded what I did.

[00:18:47] Speaker 05:
Well, this sort of seems to be a new way of doing it in the last few interferences that we'll ever see, right?

[00:18:54] Speaker 03:
Maybe.

[00:18:56] Speaker 05:
I mean, I've never seen an interference case in which the declaration mixed the lab notebooks into the declaration.

[00:19:03] Speaker 03:
Yes, well, I mean, but I don't know of any rule against that.

[00:19:08] Speaker 03:
And she put those statements in.

[00:19:11] Speaker 03:
She said, this is what I did.

[00:19:12] Speaker 03:
This is when I did it.

[00:19:15] Speaker 03:
These are the results I obtained.

[00:19:17] Speaker 03:
And that was all sworn in court testimony.

[00:19:20] Speaker 03:
It's not hearsay.

[00:19:22] Speaker 02:
So that's the affirmative assertion, accepting everything you say.

[00:19:26] Speaker 02:
This declaration is the affirmative assertion of earlier reduction to practice.

[00:19:33] Speaker 02:
What is the corroborative evidence?

[00:19:35] Speaker 02:
Because I have trouble with the lab notebooks themselves being the corroborative evidence, given that there's no independent authentication of them.

[00:19:42] Speaker 02:
And with all due respect, and I don't believe that she did this, but she could have written them the day before at home.

[00:19:48] Speaker 02:
Most lab notebooks do follow a strict protocol in the way in which they're recorded or co-signed by lab partners or things like that to independently authenticate the dates of their creation.

[00:19:59] Speaker 02:
There is no such thing here.

[00:20:02] Speaker 03:
Yeah, the corroboration, as your honor pointed out a few moments ago, was the independent testimony of doctors Koringa and Jarjor.

[00:20:13] Speaker 03:
And it's a rule of reason case.

[00:20:15] Speaker 02:
Do you think the board relied on the lab notebooks at all as part of the corroboration?

[00:20:23] Speaker 03:
They did not rely on the lab notebooks for corroboration.

[00:20:26] Speaker 03:
They relied on their testimony about what they saw

[00:20:31] Speaker 03:
experienced in that laboratory where they said they were all in very close physical proximity.

[00:20:38] Speaker 03:
They were generally aware of what each other were doing.

[00:20:41] Speaker 03:
Dr. Jarger testified that he observed some of the experiments that were reported in her declaration, which also were reported in her lab notebook.

[00:20:50] Speaker 03:
Dr. Jarger said, I provided one of the enzymes to her that she used for doing these reduction to practice experiments.

[00:20:59] Speaker 03:
Dr. Karinga said, I was aware of her work.

[00:21:02] Speaker 03:
I knew she was successful.

[00:21:04] Speaker 03:
And for that reason, I built on that work and did experiments falling within the count in primary cells rather than the transformed cells.

[00:21:14] Speaker 02:
And do you understand the board decision as having relied on that evidence as the corroborative evidence?

[00:21:21] Speaker 02:
Because as you know, under the APA, this isn't like a jury trial where if there's anything in the record at all that could possibly support the verdict, we leave the verdict alone.

[00:21:34] Speaker 02:
We have to review the board on the rationale it gave, not look at all the evidence and say, well, clearly the record supports it.

[00:21:42] Speaker 02:
We have to look at the rationale the board gave.

[00:21:44] Speaker 03:
I believe the board referred to exactly what I just told you about, that the board talked about the fact that- Where?

[00:21:53] Speaker 02:
Where would you point me to for that, for the corroboration?

[00:21:56] Speaker 03:
Well, maybe the best place to look at what the board relied on for corroboration is their decision on rehearing, which starts at Appendix B.

[00:22:16] Speaker 03:
But they walked through the testimony of Drs.

[00:22:27] Speaker 03:
Jarjor and Dr. Koringa.

[00:22:32] Speaker 03:
They pointed out that Dr. Koringa did her own experiment starting on June 3rd of 2010.

[00:22:40] Speaker 03:
Because she was aware of Dr. Guiazza's testimony.

[00:22:42] Speaker 03:
Can you show me where?

[00:22:44] Speaker 02:
I don't see this.

[00:22:45] Speaker 02:
And I'm on 1806, which is where you directed me, which is just the first page of the opinion.

[00:22:49] Speaker 02:
So show me where it is that the board explained what it was using for corroboration.

[00:23:08] Speaker 04:
No, is it?

[00:23:14] Speaker 03:
Yeah, fortunately I was just on the page.

[00:23:18] Speaker 03:
So Dr. Koringa testifies I'm at page.

[00:23:22] Speaker 03:
Appendix page 1813.

[00:23:24] Speaker 03:
Dr. Coringa testifies that Sharif calls Dr. Guiazza presenting certain data at lab meetings.

[00:23:31] Speaker 03:
Dr. Coringa also testifies to the motivations for our own work at the time based on Guiazza's results.

[00:23:40] Speaker 03:
Similarly, Dr. Jar-Jar testifies that he observed certain of Guiazza's experiments having contemporaneous discussions about the results and participating in presenting the results.

[00:23:52] Speaker 02:
So even if there may have been some earlier infection in the board's opinion with regard to the lab notebooks, they cite and give as a rationale for corroboration these other two things which are not specifically and exclusively the lab notebooks.

[00:24:15] Speaker 03:
Yes, I agree with that.

[00:24:17] Speaker 03:
And again, I think the main objection that is being raised here is simply that they refer to the notebooks in their declaration.

[00:24:33] Speaker 03:
Dr. Guiazza refers to the notebooks in her declaration.

[00:24:37] Speaker 03:
But the board says referring to the notebook in the declaration does not mean we are relying on the notebook for its truth.

[00:24:44] Speaker 03:
We're relying on her.

[00:24:46] Speaker 03:
Testimony and I would just say that you mentioned jury trial.

[00:24:50] Speaker 03:
This is not like a jury trial where the jury might be prejudiced by referring to evidence Here the board was fully capable of evaluating the evidence and did so and explained what it relied on and what it did not rely on

[00:25:09] Speaker 03:
And I would say that we cited several reasons in our briefing that these documents are admissible.

[00:25:21] Speaker 03:
But whether they're admissible or not, the declaration establishes that this work was done, what was done, when it was done, and what the results were.

[00:25:34] Speaker 03:
And that's what the board relied on.

[00:25:37] Speaker 03:
And there was more than adequate corroboration under the rule of reason.

[00:25:42] Speaker 03:
The board looked at the totality of the evidence and concluded that it showed that the testimony that Dr. Guiazza, Dr. Serto provided was credible.

[00:25:54] Speaker 03:
And I think that in view of that, there's

[00:26:04] Speaker 03:
not been showing that there was an abuse of discretion in the evidentiary rulings and the rulings on corroboration were supported by substantial evidence.

[00:26:17] Speaker 03:
Thank you.

[00:26:30] Speaker 01:
Thank you, Your Honor.

[00:26:31] Speaker 01:
Your Honors, I would just like to respond to the

[00:26:34] Speaker 01:
the decision on rehearing and what was said by the judge with respect to Dr. Coringa's testimony.

[00:26:41] Speaker 01:
And it says that Dr. Coringa testifies that she recalls Dr. Guiaz of presenting certain data at laboratory meetings.

[00:26:47] Speaker 01:
See Coringa Declaration, paragraphs 9, 15, and 20.

[00:26:52] Speaker 01:
If you look at those three paragraphs, Dr. Coringa is citing evidence that is hearsay.

[00:27:00] Speaker 01:
Presentations made by

[00:27:03] Speaker 01:
the inventor, which would also be hearsay, simply statements out of court statements by the inventor.

[00:27:09] Speaker 02:
Yeah, but okay, so like I looked at all the paragraphs as soon as he pointed me to it.

[00:27:14] Speaker 02:
Like on 8507, Jarzor, which is paragraph 15, which they say,

[00:27:19] Speaker 02:
which they cite, likewise refers to one of the lab notebook exhibits.

[00:27:24] Speaker 02:
But what he says is, I review this, and I recall observing these experiments and having contemporaneous discussion.

[00:27:31] Speaker 02:
I recall I provided this on April 4th to April 8th.

[00:27:36] Speaker 02:
That isn't I'm relying on the lab notebooks to supply me with information about when I recall this occurring.

[00:27:43] Speaker 02:
This is an affirmative recollection by this person as to a particular date.

[00:27:49] Speaker 01:
Dr. Gerger was asked about what he meant by recalling these experiments, and he said he was in the same room.

[00:27:58] Speaker 02:
He says what?

[00:27:59] Speaker 01:
That he was in the same laboratory when they occurred.

[00:28:02] Speaker 01:
He didn't testify that he stood there and watched any of the particular experiments occur.

[00:28:08] Speaker 02:
I don't understand how that undermines anything.

[00:28:10] Speaker 02:
While he happens to mention the lab notebook here, it is not providing the foundation for his testimony.

[00:28:17] Speaker 02:
He is expressing his independent understanding.

[00:28:21] Speaker 02:
You started with Dr, what was her name again?

[00:28:25] Speaker 02:
And I'm trying, I know, I moved to DeJarjor because this to me seems like the clearest place in my mind, paragraph 15, where there's clear corroboration.

[00:28:38] Speaker 01:
Well, I think everything that's coming from 15 is coming from the inventor.

[00:28:42] Speaker 01:
The inventor is telling him through Exhibit 2061 what I did.

[00:28:45] Speaker 02:
He said, I reviewed that, and I recall I was there on these days when this was done.

[00:28:52] Speaker 02:
He doesn't say, and based on looking at the lab notebook, or because of the lab notebook I remember it's these days, claims he remembers it's these days.

[00:29:00] Speaker 02:
Maybe one of those days is one of his kids' birthdays.

[00:29:02] Speaker 02:
I don't know.

[00:29:03] Speaker 02:
But he makes an affirmative assertion as to the days that he recalls it occurring on, not refreshed by the lab notebook.

[00:29:12] Speaker 02:
I mean, I hear you on the hearsay.

[00:29:15] Speaker 02:
And I hear you that it kind of infected the board's decision.

[00:29:18] Speaker 02:
But they did cite other things, which it seems to me.

[00:29:22] Speaker 02:
I just want to make it clear to you where my head is.

[00:29:24] Speaker 02:
I feel your pain on the hearsay point.

[00:29:27] Speaker 02:
I do.

[00:29:27] Speaker 02:
I just see that they cited other things.

[00:29:29] Speaker 02:
And under the substantial evidence standard,

[00:29:31] Speaker 02:
I don't see how you can end up getting the relief you want.

[00:29:35] Speaker 02:
That's not a question.

[00:29:36] Speaker 02:
I'm just trying to give you the insight into what's going on in my head, at least.

[00:29:40] Speaker 01:
I think that what the problem here really is that all of this evidence, so to speak, the documentary evidence, is hearsay.

[00:29:49] Speaker 01:
And the citations to it throughout the entire declarations have infected those declarations in such a way

[00:29:56] Speaker 01:
that the declarations should also be considered hearsay in their entirety, that you can't go through and pick out one sentence in here and figure it out.

[00:30:04] Speaker 01:
And even that paragraph 15 refers to her laboratory notebook.

[00:30:08] Speaker 05:
The problem you've got in my mind is that we're reviewing a board decision, and the board says, given everything you just said, we weren't relying on the out-of-court statements.

[00:30:24] Speaker 05:
for our decision.

[00:30:25] Speaker 05:
We were relying on the declarations or what the direct testimony was that people said they did.

[00:30:31] Speaker 05:
So we have a little bit of a problem of saying, well, the board's lying.

[00:30:37] Speaker 05:
They are telling the truth.

[00:30:38] Speaker 05:
They actually have to have been relying on the notebooks.

[00:30:43] Speaker 05:
That's your point.

[00:30:45] Speaker 05:
And I just sort of have a hard time getting that.

[00:30:47] Speaker 01:
I think the board can say that they were relying on the declarations.

[00:30:51] Speaker 01:
The problem is the declarations were relying on the notebooks.

[00:30:53] Speaker 05:
They weren't relying on the notebooks for the truth of the matter.

[00:30:55] Speaker 05:
They say that in the opinion.

[00:30:58] Speaker 01:
But the declaration did rely on those exhibits.

[00:31:02] Speaker 05:
What I'm saying is that means what the board is saying is we're relying on something in the declaration other than the hearsay.

[00:31:11] Speaker 05:
That's what I read the board to be saying.

[00:31:13] Speaker 05:
And to me, that's been a hard case for you.

[00:31:16] Speaker 01:
They haven't pointed out what that is.

[00:31:17] Speaker 05:
Thank you.

[00:31:21] Speaker 05:
We thank both sides in the case.