[00:00:00] Speaker 03:
All right, the next argued case is number 20-12-55, Chen against Chen.

[00:00:05] Speaker 03:
Mr. Tang.

[00:00:08] Speaker 00:
Yixuan Tang of your Patty Schrick LLP for appellant Dr. Chen.

[00:00:13] Speaker 00:
May you please the court?

[00:00:14] Speaker 00:
Dr. Chen made three significant contributions to the A-series patents.

[00:00:19] Speaker 00:
The trial judge made three errors and improperly took them all away.

[00:00:24] Speaker 00:
First, Dr. Chen custom-built a cell system

[00:00:28] Speaker 00:
for Structure Activity Relationship Analysis, or ASAR, and cancer drug design.

[00:00:33] Speaker 00:
The trial judge erroneously required Dr. Chen's cell system to be specific to the A-series compounds.

[00:00:41] Speaker 00:
This is a legal error because the law did not require such specificity for an inventive contribution.

[00:00:49] Speaker 02:
Second... Counselor, is it your position that the R-series, R-D-series and the A-series compounds are not chemically distinct?

[00:00:58] Speaker 00:
They are chemically distinct, but the inventive process is one and the same.

[00:01:04] Speaker 00:
I can point to one particular part of the record.

[00:01:07] Speaker 00:
Dr. Sawyers testified on Appendix 469 that the RD work defined the properties on the right-hand side that give us antagonism and give us proper pharmacokinetics.

[00:01:21] Speaker 00:
So the RD work already solved the problem of finding a drug candidate.

[00:01:26] Speaker 00:
And then that RD162 right-hand side structure was put into A52.

[00:01:32] Speaker 00:
So the entire process of getting the ACR analysis to get to RD162 and then using the ACR information to pick RD162 right-hand side structure to put into A52, that's all part of the inventive process for A52.

[00:01:49] Speaker 00:
Aside from, if they are useful for picking a compound for doing the pyridine ring, that's on Appendix 467, also from Dr. Sawyers.

[00:01:58] Speaker 04:
Mr. Thomas, this is Judge Toronto.

[00:02:00] Speaker 04:
What do you do with Dr. Sawyers' testimony that a publication, I think, was at the end of 2004, beginning of 2005, allowed a skilled artisan to

[00:02:19] Speaker 04:
to view, as in the prior art, the RD system that Dr. Chen had earlier been involved in creating.

[00:02:31] Speaker 00:
First, let's just make it clear that the cell system was never actually published.

[00:02:36] Speaker 00:
Dr. Chen's cell system was described in the RD series compound.

[00:02:39] Speaker 04:
Right, but Dr. Sawyer says something to the effect that the information that was published made it perfectly evident

[00:02:49] Speaker 04:
how to put the two things together, and it would have taken a couple of weeks or maybe a few months, but the time was just because it's slightly, there are a bunch of steps, but none of them was unknown.

[00:03:06] Speaker 00:
Dr. Sawyers talked about a skilled scientist or a trained biologist.

[00:03:12] Speaker 00:
But he never really described the skill level for such a person.

[00:03:15] Speaker 00:
He never said that that's ordinary skill.

[00:03:17] Speaker 00:
He never said that the weeks or many months possibly of work would just be routine.

[00:03:24] Speaker 00:
He never said that.

[00:03:25] Speaker 00:
And secondly, even if someone could do the testing, Dr. Chen has testified that his testing was so reliable and so efficient that makes the ACR analysis really

[00:03:38] Speaker 00:
Otherwise, you get bad data, you will never be able to get good results.

[00:03:43] Speaker 00:
And it will take 30 years instead of three.

[00:03:46] Speaker 00:
So there's no testimony from Dr. Sawyers against any of that.

[00:03:50] Speaker 00:
He never said if a skilled person came up with something, how reliable it will be, how efficient it will be.

[00:03:57] Speaker 00:
Dr. Chen's tests were really customized to this particular project.

[00:04:03] Speaker 02:
You don't dispute, though, that to the extent Dr. Chen claims that he tested any of the A-series compounds, that he never provided any results of those tests to anyone?

[00:04:16] Speaker 00:
He did not show the bar graph.

[00:04:17] Speaker 00:
That's what he meant.

[00:04:18] Speaker 00:
But he told Dr. Oak that A51 was as good as RD-37, and Dr. Oak remembered that.

[00:04:26] Speaker 02:
But then he told him to destroy everything and act like they'd never done it, right?

[00:04:33] Speaker 00:
That is a disputed point during trial.

[00:04:37] Speaker 00:
I understand the judge put that in the fact-finding in the opinion, but when you get to the analysis part, that fact never was used by the judge to discuss the joint inventorship issue.

[00:04:52] Speaker 03:
Well, I think it's not disputed, is this correct, that there was no laboratory notebook

[00:04:58] Speaker 03:
no record of the testing that we're now told was conducted?

[00:05:04] Speaker 00:
There was electronically stored data with the label CC1, and that was not destroyed.

[00:05:11] Speaker 00:
It was in the record.

[00:05:13] Speaker 03:
But there was no identification of CC1 with this product, as I recall, the undisputed record that's presented to us.

[00:05:25] Speaker 00:
That was the clear error made by the trial judge below, because when you look at all the documentary evidence, that there's no question that CC1 is A51.

[00:05:37] Speaker 00:
Otherwise, Dr. Oak will never know about A51's good activity in June of 2005.

[00:05:44] Speaker 03:
The record says it was resynthesized and tested again.

[00:05:49] Speaker 00:
That was in October of 2005.

[00:05:52] Speaker 00:
Yes, exactly.

[00:05:54] Speaker 00:
The only A51 sample before June of 2005 was given to Dr. Chen for testing, and there was never a second sample for anyone to test A51 before June of 2005, when Dr. Ukuro wrote that email.

[00:06:09] Speaker 03:
How does that affect inventorship?

[00:06:11] Speaker 03:
There's no record of the, what we're told was the original testing and there, to the extent that there were credibility determinations, there was a good deal of testimony that it was said to be inactive.

[00:06:31] Speaker 00:
Except there is an email from June of 2005 and after analysis of all the documentary evidence,

[00:06:38] Speaker 00:
Dr. Ork could only be talking about A51's encouraging activity in that particular email.

[00:06:48] Speaker 00:
Yes, there's no other explanation from all the documents.

[00:06:52] Speaker 00:
The trial judge came up with the speculation to say someone else could have tested A51, but

[00:06:58] Speaker 00:
Everyone agreed at trial that Dr. Chen was running the cell-based testing.

[00:07:03] Speaker 00:
He was the only one.

[00:07:04] Speaker 00:
And as we just discussed, that there was no A51 sample.

[00:07:08] Speaker 00:
There's not a second A51 sample before June for anyone to test.

[00:07:14] Speaker 02:
The problem is, counsel, that the trial judge went through every single one of the four grounds upon which you argue that Mr. Chen was an inventor.

[00:07:27] Speaker 02:
rejected everyone for both lack of evidence and insufficiency in the totality of the analysis, right?

[00:07:40] Speaker 00:
Well, actually, no.

[00:07:41] Speaker 00:
The judge put all the RD-related work in one paragraph on page 8 to say, finally, all the RD-series work was just buffer causation.

[00:07:52] Speaker 00:
There, he actually did not make any factual finding.

[00:07:54] Speaker 00:
He just said it's not relevant altogether.

[00:07:56] Speaker 00:
But that is a legal error because the RD162 right-hand side structure, there was no dispute Dr. Chen was involved in the ASAR that leads to that structure.

[00:08:08] Speaker 00:
And there's also no dispute that from Dr. Sawyers, the ASAR analysis actually was useful for picking it to do the pyridine thing.

[00:08:17] Speaker 00:
And then Dr. Oak and Dr. John both testified that once you know that there's RD162, then you can, it's a natural thing,

[00:08:26] Speaker 00:
to, and it's easy to put it together with the perioding to make something as good as RD162.

[00:08:32] Speaker 00:
That's Dr. Oak's words in 2005 on Appendix 1872.

[00:08:36] Speaker 00:
So the clear error was to, so RD162 was already the solution, because Dr. Oak was just trying to make something, which is A52 later, as good as RD162.

[00:08:50] Speaker 00:
But the trial judge says everything leading up to RD162 was a buffer causation, and RD162 was just a lead compound for A52.

[00:09:00] Speaker 00:
And those are clear errors, and there's no underlying factual disputes on these points.

[00:09:09] Speaker 02:
I want to point out that in this court decision... But when you say it's a legal error, when you say it's a legal error, I mean, there was testimony that there

[00:09:19] Speaker 02:
because these compounds are chemically distinct, that it wasn't as easy as you say to go from one to the other?

[00:09:29] Speaker 00:
No, the testimony was that the two compounds are different, so they have different properties.

[00:09:35] Speaker 00:
It might be unpredictable.

[00:09:36] Speaker 00:
That's why we need testing after you do the substitution.

[00:09:40] Speaker 00:
However, the inventive process itself, if we look at Dr. Oaksworth,

[00:09:45] Speaker 00:
He said, if A51 turned out to be as active as RD37, you combine it with RD162, one could easily make a compound as good as RD162.

[00:09:55] Speaker 00:
And that's on Appendix 1872.

[00:09:58] Speaker 00:
And then on Appendix 1871, Dr. John also says, in his invention disclosure, that there is a A52 molecule, its activity is similar to RD162.

[00:10:11] Speaker 02:
But there was also testimony, counsel, was there not testimony that it was very difficult to go from the RD left-hand ring to a pyridine ring?

[00:10:28] Speaker 00:
There's no testimony of that.

[00:10:30] Speaker 00:
There are a lot of testimony on why these two should be different.

[00:10:34] Speaker 00:
But in the actual inventive process, Dr. Oak actually said, again,

[00:10:39] Speaker 00:
that when you look at A51, there are no doubt, this is his word, no doubt in his mind that A51 has the same size and shape as RD37.

[00:10:48] Speaker 00:
And the left-hand side thinks it's a binding domain to the endogen receptor.

[00:10:52] Speaker 00:
That testimony shows us during the inventive process, the perioding and the banding ring on the left side were viewed as

[00:11:00] Speaker 00:
Same shape and size, serving same functions.

[00:11:03] Speaker 00:
And the resulting substitution, resulting in an A series compound that would be just as good as the original, that's the RD162.

[00:11:10] Speaker 03:
All right, let's hear from the other side.

[00:11:20] Speaker 03:
And we have your rebuttal time.

[00:11:23] Speaker 00:
Thank you, honors.

[00:11:25] Speaker 03:
OK, Mr. Sopko.

[00:11:29] Speaker 01:
Good morning, Your Honors.

[00:11:30] Speaker 01:
Mark Subko for the FLEs and may it please the court.

[00:11:34] Speaker 01:
Some of the questions that Your Honors had for opposing counsel put your fingers exactly on the issue here.

[00:11:42] Speaker 01:
The decision below turned primarily on a credibility determination by Judge Klausner.

[00:11:48] Speaker 01:
He was faced with diametrically opposing stories with respect to how the A-Series inventions came out.

[00:11:55] Speaker 01:
Dr. Chen said he tested A51 in February of 2005 and told Dr. Uck that the results were good.

[00:12:04] Speaker 01:
Dr. Uck said that Dr. Chen initially didn't tell him about the test results and instead told him to destroy his lab notebook and conceal all the evidence of A51 and then only later said that A51 was inactive.

[00:12:20] Speaker 01:
And Dr. Jung also testified that they were told, he was told

[00:12:25] Speaker 01:
by Dr. Chen that H51 was inactive.

[00:12:28] Speaker 04:
Can I just ask you, what is the timing for Dr. Jung and Dr. Oak of what they said about Dr. Chen saying this was either active or inactive?

[00:12:49] Speaker 01:
The timing there was in February of 2005, Your Honor, a couple of weeks after Dr. Oop testified that he finally successfully synthesized the A51 compound.

[00:13:06] Speaker 01:
So based on the findings that Judge Klausner made, he clearly sided with Dr. Oop.

[00:13:13] Speaker 04:
That answer wasn't complete to me.

[00:13:17] Speaker 04:
Dr. Oak synthesized A51.

[00:13:21] Speaker 04:
There's no dispute that he gave it to Dr. Chen, is that right?

[00:13:26] Speaker 01:
That's correct, Your Honor.

[00:13:27] Speaker 04:
According to Dr. Oak, at what times did Dr. Chen tell Dr. Oak certain things about that?

[00:13:38] Speaker 01:
Dr. Uck testified that a couple of weeks after he provided the A51 sample to Dr. Chen, which would have been in the February 2005 timeframe, he asked Dr. Chen about the test results.

[00:13:52] Speaker 01:
He said it usually took two to three weeks for Dr. Chen to test the sample that he was given.

[00:13:58] Speaker 01:
And it was at that time when he asked Dr. Chen about the test results that he was told to destroy his lab notebook and conceal the evidence.

[00:14:08] Speaker 04:
Dr. Uck then said... I'm sorry, just to be clear, was it at that time that Dr. Chen said results bad?

[00:14:16] Speaker 01:
No, Your Honor.

[00:14:17] Speaker 01:
The testimony was that it was about a week later that Dr. Chen came back and told Dr. Uck that the test results were bad.

[00:14:26] Speaker 01:
And that was about the same time that Dr. Jung testified that he asked Dr. Chen about the test results and was also told that the test results were bad.

[00:14:36] Speaker 04:
Okay, and did there come a time when Dr. Chen, according to Dr. or Dr. Chung, said the test results were good?

[00:14:45] Speaker 01:
No, Your Honor.

[00:14:47] Speaker 01:
The testimony was that Dr. Chen never reported successful test results for the A51 compound.

[00:14:55] Speaker 01:
It wasn't until about seven months later, after Dr. Chen had left for China,

[00:15:01] Speaker 01:
that Dr. Ouk discovered that his NMR spectra of the A51 compound was missing and renewed suspicions were arisen with respect to Dr. Chen's activity.

[00:15:14] Speaker 01:
At that time the record shows that A51 was resynthesized and at that time it was tested and the results were confirmed as good.

[00:15:24] Speaker 04:
Okay, between the two periods we just discussed there occurred

[00:15:30] Speaker 04:
what is pretty central to Dr. Chen's presentation, namely the June 2005, I don't know if it's a letter or an email or a report that I think it's Dr. Oak wrote to somebody at a commercial company that was interested in some of, in this area.

[00:15:53] Speaker 04:
And I think as I understand it, Dr. Chen's view of that is that in that,

[00:16:00] Speaker 04:
document in June of 2005, so well before the resynthesis, but after the January, February events about the original A51, that June 2005 document shows Dr. Uck saying there's this new promising thing, and according to Dr. Chen, that could only have been A51, so Dr. Uck must have heard something positive about the results.

[00:16:30] Speaker 04:
Can you address all that?

[00:16:33] Speaker 01:
Yes, Your Honor.

[00:16:34] Speaker 01:
I believe you're referring to the June 2005 email that Dr. Uck sent to Medivation.

[00:16:41] Speaker 01:
Dr. Chen did argue that it had to be A51 that Dr. Uck was indicating had good activity because he hadn't successfully tested any other new scaffold.

[00:16:55] Speaker 01:
But the testimony was conflicting there.

[00:16:57] Speaker 01:
Dr. Ugg testified that he was referring to a compound called RD-144.

[00:17:04] Speaker 01:
It was a different scaffold than the other RD series.

[00:17:08] Speaker 01:
He had replaced the central spirocyclic thiohagdantoin ring with a perazolone ring.

[00:17:16] Speaker 01:
And Dr. Ugg testified that that's what he was referring to in that email.

[00:17:22] Speaker 01:
Dr. Chen said, well, that can't be because I didn't have any test results for RD-144.

[00:17:29] Speaker 01:
I had a problem putting it into solution.

[00:17:31] Speaker 01:
But we know that Dr. Chen's lab notebooks were not a complete record of his testing.

[00:17:37] Speaker 01:
He admitted, for example, that he didn't document his testing of the CC1 compound in his lab notebook because it wasn't named.

[00:17:45] Speaker 01:
So we've got conflicting testimony as to what was being referred to in that email.

[00:17:51] Speaker 01:
It was Dr. Chen's obligation to come forward with clear and convincing evidence on that point, even under a rule of reason analysis.

[00:18:00] Speaker 01:
All he's done here is come up with a plausible alternative explanation based on conflicting evidence, but that's not enough to establish clear error in the fact findings that Judge Klausner made.

[00:18:14] Speaker 01:
I think it's telling, Your Honor, that the record showed that nothing whatsoever happened between February of 2005 and October of 2005 with respect to the A series project.

[00:18:28] Speaker 01:
That's undisputed.

[00:18:30] Speaker 01:
If Dr. Chen had truly reported positive results from his testing of A51, one would have expected that somebody would have said something or did something during those eight months to pursue the development of the A series compound.

[00:18:44] Speaker 01:
So that absence of evidence there is evidence that further supports the district court's credibility determination that Dr. Chen never communicated positive test results for the A51 compound to anyone at UCLA.

[00:19:01] Speaker 02:
The trial court made credibility determinations and pointed to the absence of any objective evidence other than the

[00:19:14] Speaker 02:
Dr. Chen's own testimony as it relates to the pyridine substitution and the testing and pointed out that everyone disputed his testimony and there was no record.

[00:19:26] Speaker 02:
But what about the issue of going from the RD series to the A series and counsel's argument or your friend on the other side arguing that

[00:19:39] Speaker 02:
that it really wasn't a big leap and that once he participated in the RD series development, which everyone concedes, that he therefore should automatically be entitled to inventorship on the A series compound.

[00:19:55] Speaker 01:
Your Honor, I think the record shows that it was a very significant leap to go from either the RD-37 compound to A-51, well, particularly RD-37 compound to A-51.

[00:20:10] Speaker 01:
There was testimony from

[00:20:12] Speaker 01:
Dr. Oock and also from Dr. Winkler, the defendant's technical expert, that this was a very significant chemical structural change, replacing the left-hand heterocyclic ring with the pyridine ring.

[00:20:32] Speaker 01:
The inventors had a rationale for why that would result in significantly better

[00:20:38] Speaker 01:
binding properties with respect to this new compound.

[00:20:42] Speaker 01:
But it's also important to note how these two different compounds came about.

[00:20:47] Speaker 01:
Dr. Chen's theory is because he contributed to the RD series compounds, the development of those, that necessarily if there's anything in common between the RD compounds and the A series compounds, he must be an inventor.

[00:21:01] Speaker 01:
The A-series compounds came about as the result of a very different inventive process.

[00:21:08] Speaker 01:
According to the testimony of Dr. Jung and Dr. Ugg, they were trying to solve a very specific problem.

[00:21:15] Speaker 01:
There was a concern about a potential patentability problem with regard to the RD-series patents.

[00:21:22] Speaker 01:
There was a concern in view of a resell-Uclef patent.

[00:21:26] Speaker 04:
the chemist, Dr. Hoot.

[00:21:29] Speaker 04:
Just before you go on, is the Rousseau-Uclef patent that was of concern the 5589497?

[00:21:37] Speaker 04:
Or some different patent?

[00:21:43] Speaker 01:
I believe that's correct, Your Honor.

[00:21:49] Speaker 01:
OK.

[00:21:50] Speaker 01:
The issue there was that there was a concern that the chemists had that there may be a patentability problem.

[00:21:58] Speaker 01:
Turned out ultimately not to be an issue.

[00:22:00] Speaker 01:
But at the time they were trying to solve that particular problem.

[00:22:04] Speaker 01:
They were trying to come up with a chemical structure that would be effective for treating prostate cancer that would be outside of those patents.

[00:22:12] Speaker 01:
And that was the reason why Dr. Jung testified that he called the August 2004 meeting.

[00:22:19] Speaker 01:
The testimony was that Dr. Jung, excuse me, Dr. Ouk came to that meeting with an idea for an alternative chemical structure, one that would have a heterocyclic ring on the left-hand side in place of the arrow ring that was used in the RD series compounds in combination with the spirocyclic thiodentone.

[00:22:45] Speaker 01:
and also the right-hand arrow ring.

[00:22:48] Speaker 01:
He came to that meeting with that idea to solve this particular problem.

[00:22:52] Speaker 04:
And during that meeting... Does it matter that that's not a scientific problem but a legal freedom problem?

[00:23:01] Speaker 01:
I don't believe it makes any difference as to why the inventors were looking at making a change.

[00:23:08] Speaker 01:
Their motivation isn't

[00:23:12] Speaker 01:
isn't relevant to the conception that they came up with.

[00:23:16] Speaker 01:
Dr. Jung and Dr. Uck came up with the concept of the chemical structure for the A51 compound in connection with that August 2004 meeting.

[00:23:27] Speaker 01:
There's a document that Dr. Jung had prepared shortly after that meeting that lays out his rationale, shows the structures there.

[00:23:39] Speaker 01:
There's nothing in the record other than Dr. Chen's uncorroborated testimony that he contributed to that.

[00:23:47] Speaker 01:
And again, Judge Klausner made a credibility determination that he did not contribute to the chemical structure of the A series compounds.

[00:23:58] Speaker 04:
Is that the point that Dr. Chen argued below but doesn't really argue or appeal?

[00:24:04] Speaker 01:
Yes, Your Honor, it appears that Dr. Chen has abandoned the theory that he was the one who identified the chemical structure or he was the one who came up with the idea for substituting the purity ring into the RD-37.

[00:24:21] Speaker 01:
So we don't have any evidence that Dr. Chen contributed to the conception.

[00:24:30] Speaker 01:
We have

[00:24:31] Speaker 01:
no evidence and in fact the district court made a credibility determination that he never communicated positive test results regarding the A-series compound, the A-51 compound to anyone at UCLA.

[00:24:45] Speaker 01:
And without him having communicated positive test results, there's no collaboration of the type that this court's precedent requires for joint inventorship.

[00:24:58] Speaker 01:
There's no communication between

[00:25:01] Speaker 01:
the named inventors and Dr. Chen about the specific invention that's covered by the A-Series patents.

[00:25:10] Speaker 04:
Do you agree that testing, had it occurred and had it turned out to be positive, would have been at least relevant to at least those claims in the three patents at issue that seemed to require

[00:25:28] Speaker 04:
some positive performance of the structure, not even if he didn't contribute to the identification of the structure?

[00:25:38] Speaker 01:
We don't have any record of that, Your Honor, partly because of the way that Dr. Chen presented his case below.

[00:25:44] Speaker 01:
He didn't identify any particular claims of any of the three A-series patents that he allegedly contributed to.

[00:25:51] Speaker 01:
But at that point, with respect to the A-series compounds, that testing would only have been confirmatory.

[00:25:58] Speaker 01:
Conception of a chemical substance, according to this court's precedent, including Burroughs' welcome, just requires knowledge of the specific chemical structure and an operative method of making it.

[00:26:10] Speaker 04:
At the time that Dr. Buke successfully sensed this... And I guess what I'm thinking about is, one example, claim 24 of the 507 requires a pharmaceutical composition comprising a therapeutically effective amount

[00:26:27] Speaker 04:
of a compound of claim one, that's more than here's what it is and here's how to make it.

[00:26:33] Speaker 04:
That talks about the language I used before was a positive property to which testing would seem to be relevant.

[00:26:41] Speaker 04:
And as long as he made a contribution, again, this is assuming away the fact finding about testing, whether it would have been relevant to a single claim would have entitled him to or significant to a single claim

[00:26:56] Speaker 04:
would be enough for inventorship status on the whole patent, right?

[00:27:06] Speaker 01:
Your Honor, I would agree that, may I complete the answer to the question, Your Honor?

[00:27:14] Speaker 01:
I would agree that such testing would potentially be relevant to issues there, though.

[00:27:20] Speaker 01:
That testing only occurred after Dr. Chen was no longer there.

[00:27:24] Speaker 01:
And there's no record in the trial proceedings below as to what testing was done with respect to the A-series compounds after Dr. Chen left for China.

[00:27:36] Speaker 01:
So there's not even a record that his unique testing protocol or cell lines were used for the testing.

[00:27:43] Speaker 01:
We just never established that record.

[00:27:46] Speaker 01:
If there are no other questions, I thank you for your time, Your Honors.

[00:27:50] Speaker 03:
Any more questions for Mr. Sefko?

[00:27:53] Speaker 00:
No.

[00:27:53] Speaker 03:
Okay, thank you.

[00:27:55] Speaker 03:
And Mr. Tang, you have your rebuttal time.

[00:27:59] Speaker 00:
Regarding the left side of the structure, I want to point out that Dr. Chen's testing of A51 is a contribution for subsequent the A-series genus, all the compounds subsequently, because that testing turned a hopeful expectation that the pyridine substitution will work into a definite and permanent idea.

[00:28:22] Speaker 00:
And regarding the fact of the testing, the trial court never credited Dr. Oak's testimony that he was talking about RD-144 in that smoking gun email from June of 2005.

[00:28:34] Speaker 00:
And thirdly, Dr. Sawyers, after Dr. Chen testified, Dr. Sawyers testified that he said, after testing, were we now to the A51, but what was called CC1?

[00:28:47] Speaker 00:
This is on Appendix 0316.

[00:28:50] Speaker 00:
So he was under his own counsel's

[00:28:52] Speaker 00:
questioning, he just brought it out that CC1 is what we now know as A51.

[00:28:57] Speaker 00:
So that's admission on the record.

[00:29:00] Speaker 00:
So that's what I want to say about the left side.

[00:29:03] Speaker 00:
But the Dr. Chan's contribution to the right-hand side, that's the essential feature for A52.

[00:29:09] Speaker 00:
That's the solution to the problem of curing cancer.

[00:29:14] Speaker 00:
So either of the two contributions should entitle him to be a joint inventor.

[00:29:19] Speaker 00:
And the underlying cell system, which makes all this possible, is another contribution, a separate contribution, separate basis for him to be a joint inventor.

[00:29:29] Speaker 00:
I do want to discuss this course holding in Vanderbilt a little bit.

[00:29:32] Speaker 00:
In that case, the court clarified that the contribution to a chemical compound structure does not have to be directed to the final claimed compounds.

[00:29:44] Speaker 00:
it was a Tadalafil, that's the final compound, but most of the analysis in this court's opinion is regarding whether the punitive joint inventors had contributed to the structure of an intermediary compound called GR340X, which is not in the claim.

[00:29:59] Speaker 00:
And even that intermediate compound, in addressing that, in that analysis, this court actually used the term lead compound for the intermediary compound in the inventorship process.

[00:30:11] Speaker 00:
So in this case, there's no question Dr. Chen was an active participant on appellees answering brief page five.

[00:30:19] Speaker 00:
They say the joint activity, the joint analysis and active collaboration was throughout the RD series project.

[00:30:28] Speaker 00:
It covers RD162.

[00:30:30] Speaker 00:
And we also have Dr. John and Dr. Sawyer's email communication in July of 2005 showing that Dr. Chen was the one

[00:30:39] Speaker 00:
that give the assessment that RD162 was the best compound in the series.

[00:30:46] Speaker 00:
And that's also corroborated by Dr. Chen's lab notebook.

[00:30:51] Speaker 02:
What about Dr. Oaks' testimony where at 435 and 36 of the joint appendix where he talks about how difficult the process was.

[00:31:04] Speaker 02:
He said it was the most difficult compound that he's ever made.

[00:31:07] Speaker 02:
in that lab.

[00:31:09] Speaker 02:
And he talked about how, because when you go from a CH bond to an end, everything in the ring changes.

[00:31:15] Speaker 02:
He said it's not that simple.

[00:31:17] Speaker 02:
Bond angles change, bond lengths change, the polarity changes.

[00:31:21] Speaker 02:
I mean, his testimony, which the court credited, was that this was a big leap.

[00:31:30] Speaker 00:
The synthesis of A51 did take some difficulties.

[00:31:33] Speaker 00:
There's no dispute of that.

[00:31:34] Speaker 00:
But the conception of the A-series compounds

[00:31:37] Speaker 00:
was not as difficult as now they are, the defendants are arguing.

[00:31:41] Speaker 00:
I want to point to Appendix 0439 and 0440.

[00:31:45] Speaker 00:
That's when Dr. Jung, Dr. Oaksbos, Dr. Jung is a chemist, he said, I asked him, once you have known that RD162 was quite a good, then it will be natural to take the pyridine and put it with the 162, right?

[00:31:59] Speaker 00:
And he said that would be a natural thing to do.

[00:32:05] Speaker 00:
I think my time is up.

[00:32:07] Speaker 03:
Any more questions at this point for Mr. Tong?

[00:32:11] Speaker 03:
No.

[00:32:13] Speaker 03:
This case is taken under submission.