[00:00:00] Speaker 02: Okay. [00:00:06] Speaker 02: Good morning everyone. [00:00:12] Speaker 02: Let's see. [00:00:16] Speaker 02: The first argued case is number 20. [00:00:18] Speaker 02: 1415 BASF Plant Science Against Commonwealth Scientific. [00:00:26] Speaker 02: It doesn't say which council is speaking first. [00:00:29] Speaker 02: Ms. [00:00:29] Speaker 02: Stetson? [00:00:30] Speaker 02: All right, please proceed. [00:00:32] Speaker 01: Thank you, Your Honor, and may it please the Court. [00:00:37] Speaker 01: My name is Kate Stetson. [00:00:39] Speaker 01: I am representing BASF and Cargill in this argument, except for the venue issue, which Mr. Davis will argue separately. [00:00:47] Speaker 01: This case is two cross appeals arising from a judgment on a series of different patents. [00:00:53] Speaker 01: BASF's appeal involves two issues, written description and ownership. [00:00:59] Speaker 01: So just to start with written description. [00:01:00] Speaker 01: Written description of course requires that an inventor at the time of the specification, which here was 2004, show that he actually possessed the invention of which he spoke. [00:01:12] Speaker 01: The reason for that of course, as this course said in Amgen, is to prevent an applicant from later asserting [00:01:19] Speaker 01: that he invented something that he did not. [00:01:22] Speaker 01: Here, the claim that eventually was published claims a canola plant or any plant that makes EPA and DHA the long-chain fatty acids using a particular pathway. [00:01:37] Speaker 01: The problem that the patent holder runs into with respect to written description is that the reference to canola comes up [00:01:46] Speaker 01: Four or three times in the course of this many many page patent and it comes up in laundry lists of Plants that may be available for the similar pathway process. [00:01:59] Speaker 03: It doesn't quite just come up right? [00:02:02] Speaker 03: It's it's the lead member isn't it of the preferred group is that right? [00:02:07] Speaker 01: No, I don't think that it's even described as the lead member of the preferred group. [00:02:11] Speaker 03: Isn't it the first listed member of the preferred group? [00:02:15] Speaker 01: Am I misremembering that? [00:02:16] Speaker 01: It is one of the first listed members of a 4,000 plant group. [00:02:20] Speaker 01: That's right. [00:02:21] Speaker 01: But the presence of it in the list, along with things like pineapple and alfalfa and coffee and peanuts, [00:02:29] Speaker 01: really doesn't say much about whether the invention is directed to the canola plant. [00:02:34] Speaker 01: So just to take an example. [00:02:36] Speaker 03: Right. [00:02:37] Speaker 03: But we have consistently held that we don't just look at the spec by itself. [00:02:42] Speaker 03: This is a fact question. [00:02:43] Speaker 03: And so evidence counts. [00:02:45] Speaker 03: And there was a significant amount of evidence. [00:02:49] Speaker 03: Was there not that if you could do this in the Arab doptis, which everybody understands to be a test plant, [00:02:59] Speaker 03: in particular for canola then you could do it in canola you may not be able to do it in commercial quantities you may not be able to do it may not be know what the very best way of doing it is but you could do it why isn't that enough for so I have to uphold the jury verdict on a fact question I have to if there were in fact significant evidence that you could do it in Arabidopsis then the answer is yes the issue is there's not significant evidence of this at all in fact the evidence in the record [00:03:28] Speaker 01: is exactly the type of evidence that this court found ineffective in the Centicor case. [00:03:34] Speaker 01: This is a case which Cicero in its brief doesn't address, but it reversed the judge's denial of a JMOL after a jury verdict. [00:03:43] Speaker 01: And in that case, the inventor had testified something almost eerily similar to what the expert, the single witness here testified, which is if you have it in Arabidopsis, you have it in Canola. [00:03:54] Speaker 01: There, it was a question about mouse human chimeric antibodies. [00:04:00] Speaker 01: And the question there was, did the patent specification claim human antibodies? [00:04:06] Speaker 01: And what the inventor there had said was, if you have it in mice, you have it in humans. [00:04:10] Speaker 01: But the issue was the specification in that case only was, and I'm quoting, sprinkled with a few references throughout to the fact that there were human antibodies. [00:04:20] Speaker 01: That was found insufficient to constitute [00:04:23] Speaker 01: Folsom written description that included the scope of a human antibody in that case that is exactly this case So when we talk about significant evidence I would actually encourage you to look at the evidence that is cited because what it boils down to is one witness the expert for Cicero saying a few different times if you have it in Arabidopsis you have it in canola [00:04:47] Speaker 01: And that, of course, is not, we say, sufficient, particularly when you have so much evidence that says these two plants for this invention are very different. [00:04:58] Speaker 01: They have different profiles. [00:04:59] Speaker 01: They are used different ways. [00:05:01] Speaker 03: Can you tell me, thinking about the evidence from your expert, if I were looking at that evidence with the following question constantly in mind, is he talking about [00:05:17] Speaker 03: commercial levels of production, or is he talking about all that the claim requires, which is just getting some oil out of it? [00:05:30] Speaker 03: What would I find? [00:05:31] Speaker 03: Does he ever say, you know, you really might not get oil at all, big unknown? [00:05:39] Speaker 01: Well, I think that there is a reference, and I think it's a SIROS expert, Dr. Singh, that talks about [00:05:46] Speaker 01: The time that it took Cicero to develop this in canola having to do with commercialization of course that's Belied by the record there are multiple sites in the record to the fact that the sponsor of these projects in 2009 2010 [00:06:02] Speaker 01: was saying things like, this proof of concept has not been yet shown in Canola. [00:06:10] Speaker 01: This works in Arabidopsis, but not Canola. [00:06:13] Speaker 01: That's 13479 of the Joint Appendix. [00:06:17] Speaker 01: Weakness in project, failed to achieve proof of concept in Canola, A13615. [00:06:23] Speaker 01: So this isn't even a case where you have just the four corners of the specification, which is the usual thing that you examine with written description, [00:06:32] Speaker 01: you actually have multiple references by the people who are sponsoring these projects that they haven't yet gotten it to work. [00:06:40] Speaker 01: And so when you post that up against all of the sprinkling, as this court used in the Center Corps, of references to canola in that long detailed invention of how to get this process to work in [00:06:55] Speaker 01: Arabidopsis, you have a problem. [00:06:57] Speaker 01: And let me point you to a couple other cases that were not responded to in Cicero's brief, because I think the cases to which Cicero chose not to respond are actually the pivotal cases in this brief. [00:07:10] Speaker 01: I've mentioned Centicor already. [00:07:12] Speaker 01: One of the other ones I've mentioned is this court's on-bank opinion in Ariad. [00:07:16] Speaker 01: It was exactly, again, the same posture as this case, a reversal of a judge's denial of J.Mall after a jury verdict. [00:07:24] Speaker 01: And what this court concluded, among other things, was that even where the specification in that case described the molecules that were later claimed, what the specification didn't do was to disclose, and I'll quote here, how the claimed reduction, it was a reduction in immune response, was to be achieved and provide a descriptive link between what was claimed and that response, that process. [00:07:49] Speaker 01: That is exactly what we're saying is missing in this case. [00:07:52] Speaker 01: You can't just mention canola in a laundry list of literally three dozen other things, even if it takes pole position in the top of that list, and declare that you have possession of the invention in canola. [00:08:05] Speaker 01: That's what Ariad precisely says you can't do. [00:08:08] Speaker 01: And Cicero offered no response to it in its brief. [00:08:11] Speaker 03: Lost in scientific. [00:08:13] Speaker 03: Can I just ask this? [00:08:14] Speaker 03: On the assumption that we were to disagree with you about the Canola specific claims, I don't see an argument in your brief that we should, nevertheless, strike down the very broad claims that are not limited to Canola. [00:08:39] Speaker 03: And related, I guess, am I right about that? [00:08:43] Speaker 01: I know that we argued with respect to both. [00:08:47] Speaker 03: Right, but I thought only together, presumably because what everybody cares about is Canola, but I didn't see an argument separately about the broader claims. [00:08:58] Speaker 01: I do think we made a lesser included argument that if you don't agree with him on canola, then these particular claims. [00:09:03] Speaker 03: And was there testimony below from your expert to the effect that, well, even if canola is sufficiently described, the rest of what's in the very broad claims is not? [00:09:20] Speaker 01: That hasn't been a focus of the party's briefing either below or here. [00:09:24] Speaker 01: I think in part because some of the claims that include all plants are also claims that reflect on the canola patent as well. [00:09:32] Speaker 01: So there's some overlap among those four patents. [00:09:35] Speaker 01: But I think the issue with all plants, of course, is that you can claim that you invented something, but this shows you that the specification shows you simply that [00:09:47] Speaker 01: Doctors saying in 2004 did not possess the thing that he was claiming. [00:09:53] Speaker 01: In fact, it took him until after the collaboration with BASF in order to actually get the process to work in Canola. [00:10:02] Speaker 01: And we think that timeline is telling. [00:10:04] Speaker 01: Let me speak briefly to the ownership issues, because I'm sensitive to getting into my rebuttal time. [00:10:10] Speaker 01: The jury found that BASF co-owned the group B patent. [00:10:15] Speaker 01: That finding was correct. [00:10:17] Speaker 01: It's very clear from the record that elements of BASF's genes found their way into the patent as joint results from the collaboration. [00:10:26] Speaker 03: Why is that enough under the language? [00:10:29] Speaker 03: I would have thought that when you talk about intellectual property, you're talking about, for the case of invention, we're not talking about trade secrets here or anything. [00:10:37] Speaker 03: You've got to identify what the intellectual property is. [00:10:40] Speaker 03: The intellectual property here is what's claimed. [00:10:44] Speaker 03: Lots of new inventions have components that are old. [00:10:49] Speaker 03: And I would have thought that the question for the ownership agreement would be whether this intellectual property is covered by the agreement, not just that components of the new claim reflect that. [00:11:00] Speaker 01: But yet, that's exactly what the agreement says, is that joint results that are incorporated into a patent are owned. [00:11:07] Speaker 01: And I'm looking in particular at Appendix 12-682-84. [00:11:13] Speaker 01: This is at the end of the MTEA, the Materials Transfer and Evaluation Agreement. [00:11:18] Speaker 01: And one of the things that those pages do is to point out a number of different shared constructs that include BASF's genes. [00:11:27] Speaker 01: And those genes, as we point out in our briefs, with respect to both Group B, which CSIRO is challenging, [00:11:33] Speaker 01: And two patents in group A found their way into the patent. [00:11:38] Speaker 01: Those are joint results that are incorporated into the patent. [00:11:41] Speaker 01: So under the terms of this agreement, they are wrong. [00:11:44] Speaker 03: And so which page were you referencing again? [00:11:45] Speaker 01: This is A12, 682 to 84. [00:11:48] Speaker 01: I think it's the end of volume seven. [00:11:51] Speaker 05: These are the 13 constructs identified. [00:11:54] Speaker 01: Yes. [00:11:54] Speaker 01: Yes. [00:11:55] Speaker 01: And 12 of the 13 have a PDA section. [00:11:58] Speaker 05: Patent B claims directed to any of these 13 constructs? [00:12:03] Speaker 05: I thought it was a different construct. [00:12:05] Speaker 01: The patent B claims incorporate genes that are used in these constructs. [00:12:09] Speaker 05: But any individual construct that's identified in this agreement is not present in the claims. [00:12:18] Speaker 05: Is that fair to say? [00:12:20] Speaker 01: I don't know that that's fair to say. [00:12:22] Speaker 05: You're telling me that there's some overlap between elements in these constructs and elements that are recited in the Patent B claims. [00:12:29] Speaker 05: Yes. [00:12:30] Speaker 05: Is that right? [00:12:30] Speaker 01: Yes, precisely because. [00:12:32] Speaker 05: But none of these constructs are encompassed by any of the Patent B claims. [00:12:36] Speaker 05: Is that fair to say? [00:12:38] Speaker 05: I think what is encompassed by the claims- None of these constructs would infringe any of these patent B claims. [00:12:44] Speaker 05: Or anticipate if it was prior. [00:12:45] Speaker 01: None of the joint constructs. [00:12:46] Speaker 01: But I think the issue is those joint constructs gave rise to the kind of sequences that are shown in the patent, including the BASF gene that was claimed. [00:12:57] Speaker 01: So under the language of the agreement, I think it's very clear that these are joint results that are incorporated into the patent. [00:13:04] Speaker 01: That's the language of the jury. [00:13:06] Speaker 05: But how do we know that? [00:13:09] Speaker 05: the joint results of the work on these 13 constructs materialized in the Patent D claims? [00:13:16] Speaker 01: Because you can see it at Joint Appendix 1934 and 2040, which are the 792 patent, for example, that claims... The claims include some of BASF's genes. [00:13:27] Speaker 01: Correct. [00:13:29] Speaker 05: But those were already known in the public, right? [00:13:32] Speaker 01: Yes, but the work that was done in the construct, this was not just sort of identifying some pathway to make this work in plants. [00:13:39] Speaker 01: This was identifying. [00:13:39] Speaker 05: There's some kind of smoking gun in the record that says, wow, the joint results that we've developed with BASF under the agreement [00:13:51] Speaker 05: That has spurred us on to draft claims in this particular manner, i.e. [00:13:56] Speaker 05: the Patent B claims. [00:13:57] Speaker 01: There is, in fact, a smoking gun, and I know I'm over my time, but I hope you permit me to answer the questions. [00:14:02] Speaker 01: Dr. Singh's 2017 notebook. [00:14:05] Speaker 01: So this is the notebook that was put in front of the jury. [00:14:07] Speaker 01: that Dr. Singh maintained at the time that he... We're talking about the 2009 document? [00:14:13] Speaker 01: We're talking about the 2009 document summarizing the results of the joint evaluation. [00:14:17] Speaker 05: So that's at A13244. [00:14:21] Speaker 05: And if you... Just to let you know, it didn't jump out to me what in this summary document necessarily tells me that we're talking about patent B claims. [00:14:36] Speaker 01: I think first for these purposes, recall that with respect to the Patent B claim, the question is of course whether the jury has sufficient evidence on which to decide that the BASF construct was sufficiently incorporated into the Patent B claim. [00:14:53] Speaker 01: So that's the standard. [00:14:54] Speaker 04: With respect to Dr. Singh's notebook... Whether the what construct was incorporated into the Patent B claim? [00:15:00] Speaker 01: BASF's genes that were part of all of the 12 of the 13 constructs that the MTEA examined, and that Dr. Singh, and this is 1895, appendix 9037-39, Dr. Singh acknowledged that that [00:15:17] Speaker 01: 2009 document was in his 2017 notebook because he was going back and referring to the results of the joint evaluation. [00:15:24] Speaker 01: I think that is more than plenty of evidence. [00:15:26] Speaker 05: Did he acknowledge that that document is the same thing as the Patent B claims? [00:15:31] Speaker 01: I don't know that he acknowledged specifically that it was the Patent B claim. [00:15:34] Speaker 05: So that's the question I've got in my mind is why are we looking at this document as being substantial evidence in the record that [00:15:45] Speaker 05: seeing relied on joint results in order to develop and draft the Patent B claims. [00:15:53] Speaker 01: So I think taking a step back and looking at what the Patent B claims discuss, which are particular sequences containing BASF genes, and asking the question what the jury had in front of it, what the jury had was the MTEA that listed these constructs containing BASF genes, [00:16:12] Speaker 01: It had Dr. Singh's notebook, whether or not it said this pertains to patent B. They had Dr. Singh's notebook saying these are the results of the joint evaluation with BASF. [00:16:22] Speaker 01: That notebook was incorporated into his 2017 lab notebook that formed the basis for his patent applications. [00:16:29] Speaker 01: Those are the maps of the successful gene combinations that produce the joint results. [00:16:35] Speaker 01: And we think that, again, is more than plenty to uphold that jury verdict [00:16:40] Speaker 01: B, we think the same arguments go for at least two of the patents in Group A. And beyond that, the fact that the jury had in front of it evidence that it was BASF's process in Canola that was, of course, the subject of this whole collaboration, I think means that for both Group A and Group D, ownership should have been found there as well. [00:17:00] Speaker 01: I'm aware I'm well over my time. [00:17:01] Speaker 01: If there are no further questions. [00:17:06] Speaker 02: Do you want to pursue this further? [00:17:07] Speaker 02: Because I think that's a core issue. [00:17:10] Speaker 04: Okay, thank you. [00:17:14] Speaker 02: Thank you. [00:17:14] Speaker 02: We'll save you rebuttal time and we'll hear from Mr. Davis you asked for [00:17:40] Speaker 02: Proceed. [00:17:41] Speaker 00: Thank you. [00:17:42] Speaker 00: Good morning. [00:17:42] Speaker 00: I'm Ed Davis on behalf of Cargill, specifically on the venue issue. [00:17:46] Speaker 00: May it please the District Court? [00:17:48] Speaker 00: The District Court in this instance committed error when it found that venue existed over Cargill in the Eastern District of Virginia. [00:17:56] Speaker 00: The sole basis for the finding of venue as to Cargill [00:18:00] Speaker 00: was that the district court believed that Cargill and BASF were in effect partners and alter egos such that when BASF submitted the seeds to the ATCC in Manassas, that was sufficient to confer venue over Cargill. [00:18:17] Speaker 00: We think that was factually wrong and we think that that was legally wrong, Your Honors. [00:18:22] Speaker 00: The court relied on this court's 1985 opinion in 3M versus EchoChem, but that was a decidedly different case. [00:18:31] Speaker 00: In that case, there was a party that actually was subject to a default judgment in another jurisdiction that dissolved and reformed itself in another state. [00:18:42] Speaker 00: And the district court in that case found [00:18:45] Speaker 00: and this court affirmed that in that particular instance it was okay to reach through and find venue over another party. [00:18:52] Speaker 03: Can I ask this question? [00:18:55] Speaker 03: I did not read in your brief an argument that the district court was wrong in saying that what BASF did, namely deposit seeds, was a use [00:19:14] Speaker 03: I read only an argument that Cargill is not really responsible for that. [00:19:28] Speaker 03: piercing the corporate veil and corporate relations are one thing. [00:19:36] Speaker 03: Why isn't being in business together enough to attribute to the two partners, which may be something [00:19:48] Speaker 03: whether one uses that term as a legal matter or just as a descriptive matter, but both parties have a parallel interest in the acts that will positively serve the commercialization project. [00:20:04] Speaker 03: Why isn't that enough? [00:20:05] Speaker 00: I think, Your Honor, that there may be certain circumstances in which that's enough. [00:20:10] Speaker 00: We would say here it's not enough. [00:20:12] Speaker 00: And I see my time is up. [00:20:14] Speaker 00: May I answer that question, Your Honor? [00:20:15] Speaker 00: Please. [00:20:16] Speaker 00: In this particular instance, the district court found that the deposit of the seeds at the ATCC effectively was a means towards monetizing the seeds. [00:20:26] Speaker 00: We would disagree with that. [00:20:28] Speaker 00: That was a means towards obtaining the patents for which BASF [00:20:33] Speaker 00: are the only named inventors and assignees, Cargill and BASF together could continue to monetize the seeds without ever having taken that step. [00:20:43] Speaker 03: Wouldn't the monetization, I assume BASF wants a patent in order to make this crucial asset more valuable by protecting it against others, [00:20:55] Speaker 03: And if Cargill is a commercial partner in the exploitation of that, why doesn't it follow that Cargill is, you know, a direct beneficiary of that? [00:21:06] Speaker 00: Because there's no guarantee that those partners would, excuse me, that those patent applications would in fact protect the seeds. [00:21:13] Speaker 00: And what happened in this case is a very real example of that. [00:21:17] Speaker 00: Even though those applications were filed, [00:21:19] Speaker 00: Cargill and BASF nevertheless found themselves subject to what began as a 17-path lawsuit, a counterclaim for infringement for those very same seeds. [00:21:28] Speaker 03: And I'm sorry, the venue actually turns out to be a surprisingly substantial question in this case, not least because what we have not yet talked about, which is Home Depot, [00:21:39] Speaker 03: 1400B has remarkably parallel language to the language of what 1441A was it that was the removal provision that was at issue in Home Depot where the court said five to four but nevertheless the court said defendant means defendant it doesn't mean counterclaim defendant. [00:22:01] Speaker 00: That's right. [00:22:02] Speaker 03: So why does Cargill have any 1400B rights at all? [00:22:06] Speaker 00: I think the answer is that because although the language is similar, the Supreme Court has said in T.C. [00:22:12] Speaker 00: Heartland and this court's cases in progeny have noted that that decision [00:22:18] Speaker 03: was a sea change, and that in this particular instance... Why isn't it right to say about that, in particular, I think you rely on our language in Valiant, the language is the language, pay attention to it. [00:22:34] Speaker 03: Rather than a matter of general policy, apart from the language, it says the language is the language. [00:22:41] Speaker 03: That seems more or less to be CSIRO's position here, not your position. [00:22:47] Speaker 00: I agree, at least I understand that to be their position. [00:22:50] Speaker 00: I think the answer is the language doesn't always mean the language. [00:22:54] Speaker 00: And we saw that in TC Heartland where the Supreme Court said that resides for purposes of the general venue provision doesn't mean what resides means for purposes of 1400B. [00:23:04] Speaker 00: And so in the instance of a patent-specific venue, [00:23:10] Speaker 00: While we acknowledge that Home Depot has some language that may bear on this instance, we think that it's distinguishable given that that was related specifically to the Class Action Fairness Act, whereas this particular one deals with the patent venue statute. [00:23:27] Speaker 00: And in fact, what the majority of Indians said even in that five to four decision was, [00:23:32] Speaker 00: We acknowledge that this is a close call, and the reading that the dissent is giving the statute is a reasonable one. [00:23:40] Speaker 00: We just think that ours is better. [00:23:42] Speaker 05: So in your view, a civil action for patent infringement means a claim for patent infringement? [00:23:51] Speaker 00: I'm not sure that I would necessarily go that far, Your Honor. [00:23:55] Speaker 05: Or at least it encompasses [00:23:58] Speaker 05: any claim for patent infringement. [00:24:00] Speaker 00: I think that's probably right. [00:24:01] Speaker 05: I mean, the distinction here that we see is that... But getting back to Judge Torano's question, the Supreme Court in Home Depot rejected the idea that civil action, at least for purposes of that statute, could encompass a claim. [00:24:17] Speaker 00: For purposes of that statute and that situation, that's what the Supreme Court found. [00:24:24] Speaker 02: Okay. [00:24:24] Speaker 02: Thank you, Mr. Davis. [00:24:26] Speaker 05: Mr. Davis? [00:24:28] Speaker 05: So just so I understand the end game, you want Cargill to get out of this case so that a lawsuit could be filed against Cargill somewhere else in the proper venue? [00:24:41] Speaker 00: Well, I mean, we would certainly prefer that this court affirmed or excuse me, that this court reversed for the reasons that Ms. [00:24:49] Speaker 00: Stetson stated and so then there would be no other lawsuit to file. [00:24:52] Speaker 00: Ultimately, that would be a decision that CSIRA would have to make. [00:24:56] Speaker 00: But we do believe that because venue was not appropriate in the first instance that what is appropriate here is that the judgment against Cargill be vacated. [00:25:09] Speaker 02: Okay. [00:25:10] Speaker 02: All right. [00:25:11] Speaker 02: Thank you, Mr. Davis. [00:25:18] Speaker 02: Mr. Jay? [00:25:26] Speaker 03: Would you mind starting with the venue question? [00:25:31] Speaker 06: Be happy to, Your Honor. [00:25:32] Speaker 06: So our position on venue is that we did not file a civil action for patent infringement against Cargill. [00:25:41] Speaker 06: We brought counterclaims, and the Supreme Court said in Home Depot, in the identical procedural posture, a counterclaim by the original defendant in a forum picked by someone else, the original plaintiff, brought a counterclaim against the original plaintiff and others. [00:25:55] Speaker 06: And the Supreme Court said, that's not a new civil action. [00:25:57] Speaker 06: Neither is this. [00:25:59] Speaker 06: So that's our statutory argument. [00:26:01] Speaker 06: We also, of course, think the district court got it right, even if you apply 1400B to our counterclaim. [00:26:07] Speaker 05: Is there something special about patent law, something unique about patent law, where we have to read the patent-related statutes differently, like apparently what happened in TC Heartland? [00:26:19] Speaker 06: We're certainly not arguing for that. [00:26:21] Speaker 06: We're actually arguing for you. [00:26:22] Speaker 05: I know you're not arguing, but why can't [00:26:26] Speaker 05: What happened in T.C. [00:26:27] Speaker 05: Heartland be similar to what should happen here? [00:26:30] Speaker 06: Well, a couple of points about T.C. [00:26:31] Speaker 06: Heartland. [00:26:32] Speaker 06: One, it was interpreting the other prong of the statute, for one thing, the resides prong. [00:26:39] Speaker 06: Second, this court in HTC, post T.C. [00:26:43] Speaker 06: Heartland case, it explained the relationship of the patent venue statute and T.C. [00:26:49] Speaker 06: Heartland and other venue statutes, and it says that [00:26:52] Speaker 06: TC Heartland says that the patent venue statute applies when it applies, but that when there are no standards for venue, such as when the defendant is an alien, so there's no venue privilege. [00:27:06] Speaker 06: And so do here. [00:27:07] Speaker 06: There is no venue protection that applies to counterclaim defendants. [00:27:11] Speaker 03: Was that HTC or ZTE? [00:27:13] Speaker 06: I believe it's HTC, but I don't know. [00:27:18] Speaker ?: OK. [00:27:18] Speaker 06: I apologize, but that's what I have down. [00:27:21] Speaker 03: So when looking at this, one of the cases that cropped up that people haven't talked about is an old 1932 Supreme Court decision, General Electric against Marvel. [00:27:34] Speaker 03: Are you familiar with that? [00:27:35] Speaker 03: It's the case that under Equity Rule 30 at the time said similar posture except no third party. [00:27:47] Speaker 03: One, plaintiffs sued defendant for patent infringement. [00:27:50] Speaker 03: Defendant counterclaimed against the plaintiff for patent infringement. [00:27:54] Speaker 03: One of the issues resolved by the Supreme Court, short opinion, was whether the plaintiff could say, no venue here under the predecessor of 1400 be in the Supreme Court. [00:28:04] Speaker 03: So now you're a plaintiff. [00:28:06] Speaker 03: You gave that up when you filed. [00:28:08] Speaker 03: But there's language in there suggesting, suggesting might be as strong as one can say, [00:28:17] Speaker 03: In general, it's not just the defendant, literally the defendant, who would have, I guess, 1400B rights than Judicial Code 48, that it was only the forfeiture that eliminated that. [00:28:35] Speaker 03: And if one takes that language, why doesn't that language suggest a rather strong policy to read what is now 1400B [00:28:45] Speaker 03: to say that in the absence of a forfeiture by voluntarily going to the forum, you're protected in a patent case by the venue. [00:28:58] Speaker 06: So I think that kind of built into your question is my answer that the Supreme Court, and I do recall reading that case, I believe that the Supreme Court chose to rest on waiver precisely because it was not willing to, [00:29:14] Speaker 06: A rationale like the one that you're positing would have eliminated the need to get to waiver holding at all. [00:29:23] Speaker 06: In other words, the court did not take up the question of what would happen to a third party defendant. [00:29:29] Speaker 03: I think also... There was none in that case. [00:29:32] Speaker 03: And at the time, third party practice counterclaims essentially was a... [00:29:37] Speaker 03: kernel of what it became with the federal civil rules. [00:29:40] Speaker 06: And that's exactly where I was going, because that was under the equity rules. [00:29:42] Speaker 06: Then come the civil rules. [00:29:44] Speaker 06: And the author of the civil rules, Judge Clark of the Second Circuit, wrote one of the decisions on which we rely, explained it with some length. [00:29:53] Speaker 06: This is the 1944 decision of the Second Circuit. [00:29:56] Speaker 03: Oh, Lesnick? [00:29:57] Speaker 06: Lesnick versus public industry, that's right. [00:30:00] Speaker 06: explained that where a party is brought in to the case after the civil action has commenced, the better reading is that they have no venue privilege, certainly not for a mandatory counterclaim defendant, because consider the position that the defendant is in. [00:30:19] Speaker 03: The defendant has to... When you filed this counterclaim, did you designate, is it clear that this is a compulsory counterclaim, compulsory even [00:30:30] Speaker 03: from Cargill's point of view? [00:30:32] Speaker 06: So that brings me actually to a point I wanted to make. [00:30:36] Speaker 06: So in patent cases uniquely, this is the one thing that is unique to patent cases here, is that there's a special jointer rule, 35 U.S.C. [00:30:42] Speaker 06: 299. [00:30:44] Speaker 06: Section 299 says that you can't join multiple infringers in the same case. [00:30:48] Speaker 03: This is from the American Inventions Act provision? [00:30:52] Speaker 06: It was amended in, I believe. [00:30:57] Speaker 06: That statute says that you can't join, whether as defendants or as counterclaim defendants, infringers in a single civil action unless their conduct all arises from the same common nucleus of operative fact or the same transaction recurrence. [00:31:11] Speaker 06: That's the same test for counterclaims, for mandatory counterclaims. [00:31:15] Speaker 06: So I think it follows that if it weren't mandatory, it's in Title 35. [00:31:19] Speaker 06: If it weren't mandatory, we wouldn't be having this discussion. [00:31:25] Speaker 06: If I'm happy to take any more questions about venue, but I do want to make sure to get to the other issues that we phrased I Hope you don't mind if I circle back to venue sometime later Not at all. [00:31:38] Speaker 06: I'm here to answer the court's questions, and it certainly is an interesting issue I think you may be right that I may have misspoken about CTE versus HTC I [00:31:46] Speaker 06: So the one issue that really does cut across all the patents is the correct interpretation of the MTEA, and I do want to turn to that. [00:31:56] Speaker 06: So I took my friend's argument to be that because there are BASF genes in a couple of the patents, I believe I heard her say, those genes are joint results. [00:32:07] Speaker 06: That's not correct. [00:32:08] Speaker 06: That's not how the definitional provisions of the MTEA work. [00:32:11] Speaker 05: Genes that were included maybe the genes themselves aren't joint results, but the work that was done that used those genes that they're then yielded interesting results or therefore stimulated [00:32:28] Speaker 05: the recognition that those genes were valuable genes that could be used in constructs that could then be claimed and patented. [00:32:34] Speaker 05: I think that's the line of thinking. [00:32:36] Speaker 05: And given all of the work that these two parties were doing together during the same critical time period, there is at least circumstantial evidence for the jury to conclude that yes, [00:32:46] Speaker 06: All of that work joint work done together that developed useful interesting joint results Inspired the claims that ultimately got drafted so a couple of results of that responses to that one is a legal response about what the agreement provides for the other is a factual response about what was proved at trial so the agreement provides that intellectual property that subsists in joint results or joint new materials is co-owned and [00:33:11] Speaker 06: But there still have there have to be actual joint results or joint results is the information that derives from the collaboration joint new materials are actually developed in the collaboration so there has so this is the proof point there has to be proof that the [00:33:26] Speaker 06: genes made their way into the patents, not because they were in the public domain, but as a result of the collaboration. [00:33:34] Speaker 06: That's where there's a complete failure of proof. [00:33:38] Speaker 06: To the contrary, the Group A patents in particular, these genes are listed in the specification of our provisional application filed years before the collaboration began. [00:33:48] Speaker 06: So not only is there no circumstantial evidence that could overturn a jury verdict, there's certainly not even enough to sustain a jury verdict. [00:33:56] Speaker 06: Suggesting that that the collaboration inspired the group a patents the same thing really is true for the group B patents and when in the colloquy with my friend on the first half of the argument [00:34:10] Speaker 06: that you asked about whether there was a smoking gun and the document found in the diary is the only thing that my friends on the other side have been able to point to. [00:34:19] Speaker 06: As we say in our reply brief, that document does not say anything, anything at all that suggests that the collaboration produced information that is now embodied in the Group B patent or for that matter any other patent. [00:34:35] Speaker 06: It's a summary of the [00:34:36] Speaker 05: of the collaboration, but... Do we know from this 2009 document, again, JA 13244, there's these references to certain constructs, 1670, 1675, do we know what those are? [00:34:52] Speaker 06: So these, the performing constructs are the constructs that were listed on Schedule B as constructs that was going to be tested in the evaluation. [00:35:03] Speaker 06: None of those constructs. [00:35:05] Speaker 06: is in any of the siro patents. [00:35:09] Speaker 06: So just to be clear, that the other side is saying that genes that BASF came into the evaluation with, so they were listed on schedule A as BASF's materials, old materials, not new materials, that because those genes showed up in a siro patent that BASF [00:35:27] Speaker 06: co-owns them. [00:35:28] Speaker 06: That's not correct as a matter of the language because it fails to apply either joint new materials or joint results. [00:35:35] Speaker 06: And it's inconsistent with the jury instruction that the district court gave the jury at appendix 8321, which says that there must be some joint results or joint new materials incorporated into the patents. [00:35:45] Speaker 03: Is there any difference in your argument with respect to this agreement issue, the ownership issue [00:35:56] Speaker 03: between, I guess, you are partly challenging a jury verdict and partly defending a jury verdict. [00:36:06] Speaker 03: Is there any difference in our thinking about those two applications of this ownership inquiry? [00:36:13] Speaker 06: I don't think so because our argument is that the jury was correctly instructed. [00:36:18] Speaker 06: No one's objected to the jury instruction. [00:36:20] Speaker 06: No one is here challenging the jury instruction or asking for a new trial. [00:36:23] Speaker 06: And so the question really is just whether there was sufficient evidence for the jury to find co-ownership of A, B, or D when the jury found co-ownership only of B. Could you remind me where in the JA the jury instruction is? [00:36:36] Speaker 06: 8321. [00:36:36] Speaker 06: 8321? [00:36:38] Speaker 05: Yes. [00:36:43] Speaker 06: You'll see that that's not from the trial transcripts, but I'll tell you that that is verbatim with one, except for one letter, what the jury, what the judge delivered to the jury. [00:36:57] Speaker 06: 83, is that volume four? [00:37:05] Speaker 06: And it says that if you find from a preponderance of the evidence that any such genetic materials, meaning jointly created new genetic materials, genetic lines or research results were incorporated into any of the asserted patents, then BASF is a co-owner of such patents. [00:37:19] Speaker 06: That's the operative line, which is at the very bottom of 8321 and carries over to 8322. [00:37:23] Speaker 03: Written description. [00:37:32] Speaker 03: And in particular, tentacle. [00:37:36] Speaker 06: So I think our response to that is that this is not the kind of case like the ones including Senate Court on which my friends are relying because in this case the blueprint. [00:37:47] Speaker 06: No one is challenging possession of the blueprint. [00:37:50] Speaker 06: The blueprint is where all the variability is. [00:37:53] Speaker 06: If we were here challenging possession of the blueprint, then maybe some of these other cases would be more analogous, where there are many variables and many things from which to choose. [00:38:04] Speaker 06: But this is implementation of the blueprint in a plant. [00:38:08] Speaker 06: Throughout the specification, it says that the goal of this technology, and this is in the background of the invention right through the specification, [00:38:16] Speaker 06: Is to develop it in crop plants specifically oilseed crop plants and I think really the we have more than is required in that we have a working example not required. [00:38:28] Speaker 06: Which was reduced to practice also not required and there's testimony expert testimony from not just the inventor Dr Singh. [00:38:34] Speaker 06: but also our expert, Dr. Kunst, who said, if you have it in Arabidopsis, you have it in canola. [00:38:42] Speaker 06: The other side challenged Dr. Kunst and said, now, you know, Dr. Kunst, this is a swearing contest between you and Dr. Murphy. [00:38:47] Speaker 06: I'm paraphrasing a little bit. [00:38:48] Speaker 06: But this is going to be a question of whether the jury believes you or believes Dr. Murphy. [00:38:52] Speaker 06: Well, the jury believed Dr. Kunst and not Dr. Murphy. [00:38:55] Speaker 05: But why did the jury believe your expert? [00:38:58] Speaker 05: Just because your expert said, if you have it in Aeridopsis, then you have it in canola. [00:39:03] Speaker 05: What is the because? [00:39:05] Speaker 05: What is the why? [00:39:06] Speaker 05: Why do you necessarily have possession in canola? [00:39:10] Speaker 06: So Dr. Koenst, who's worked with Arabidopsis for 35 years, explained that although there are some differences... A lot of differences. [00:39:18] Speaker 06: Sure, but not material ones, because number one, they're 85% genetically identical. [00:39:22] Speaker 06: Number two, they make oil in the same way. [00:39:25] Speaker 06: And that really is the key reason that they make oil in very similar ways. [00:39:31] Speaker 06: They have the same genetic ability to make ALA, which, as you know, is the fatty acid at the beginning of the pathway. [00:39:39] Speaker 06: So for those reasons, she explained, Arabidopsis is more convenient to work in a laboratory because its generations are quicker. [00:39:47] Speaker 06: It generates seeds and then a new plant much more quickly than if you had to go out and plant a canola crop and get the seeds from it and take the ones that are transgenic and develop and then plant them again and make a new generation. [00:39:59] Speaker 06: It's more convenient to work with but definitely predictive and I understand that the other side [00:40:03] Speaker 06: Their expert said, no, no, it's different sizes, and it's different in all these ways. [00:40:08] Speaker 06: But that was a fact question for the jury about whether it is similar in the relevant respects. [00:40:15] Speaker 06: And I think Dr. Quinn's explanation, this is at 10071 to 72 of the appendix, is very good on why Arabidopsis really is predictive, certainly enough on which the jury could base the verdict of adequate written description. [00:40:30] Speaker 06: And that's setting aside all of the disclosure of canola in the specification itself. [00:40:37] Speaker 05: People were aiming at canola crop plant for a long time and yet for some reason your side couldn't quite actually reduce it to practice for quite a few years. [00:40:48] Speaker 05: Couple times around it didn't work. [00:40:50] Speaker 06: No, that's not right your honor and I'm glad to have the chance to address that so The testimony is under but it that the first time very first time that siro tried to implement it in canola It did work. [00:41:02] Speaker 06: Why did they wait for a few years to implement it in canola? [00:41:05] Speaker 06: That's because they were optimizing it they were and this goes back to the colloquy in the top side of the argument the claims just deal with possession of [00:41:15] Speaker 06: pathway in canola they can generate a small amount of oil any any amount of the oil but the Siro scientists were working on optimizing the pathway so that it would be commercially viable and they chose to do that in tobacco plants and other other laboratory settings so that this is dr. Singh's testimony when we did it in canola it would work the first time and that's exactly what happened [00:41:37] Speaker 05: Am I misunderstanding or misremembering a quote from the record saying something like, okay, it didn't work? [00:41:44] Speaker 06: So my friend pointed you to a document like that, but I'd appreciate the chance to explain that. [00:41:51] Speaker 06: So what we're talking about is a 2009 business case document from, I think it may have to go over. [00:41:58] Speaker 06: GRDC? [00:41:58] Speaker 06: from GRDC, sorry, it's 2007, from GRDC. [00:42:02] Speaker 06: It is by business people, for business people, about whether they should invest a million dollars in this project. [00:42:09] Speaker 06: And in the course of that document, they have a section on key risks. [00:42:15] Speaker 06: And unfortunately, the appendix does not include the page right before the quoted page, which is where the key risks header is. [00:42:22] Speaker 06: But you can see from the testimony describing this document that it goes on to discuss market risks, competition risks, technology risks, consumer regulatory engagement risks. [00:42:32] Speaker 06: All of these are written in the present tense, but they are all describing things that might happen. [00:42:38] Speaker 06: Things that, if they did happen, would be bad and would make the investment risky. [00:42:42] Speaker 06: So, for example, on the first page, [00:42:44] Speaker 06: Market won't accept a GM crop. [00:42:47] Speaker 06: That's obviously not talking about the market that day It's talking about high but high that is a hypothetical risk if we came to market So the same thing is true of the possibility so each of the items is basically should be prefaced by the risk that [00:43:01] Speaker 06: Yes, that's right. [00:43:03] Speaker 06: It's a section called key risks, and that is exactly what it's describing. [00:43:06] Speaker 06: All of this is described by GRDC's institutional witness at trial, who also said that the risk they were focused on, with respect to technology in particular, was that it wouldn't produce commercial quantities in canola. [00:43:19] Speaker 06: And so the jury's entitled to credit all of that. [00:43:23] Speaker 06: Certainly, this document does not suggest that there was not possession in the face of the expert evidence and the disclosure and the specification. [00:43:33] Speaker 06: I see that I'm over my time, and I've not been. [00:43:36] Speaker 06: Can we go back to venue? [00:43:39] Speaker 06: Be happy to. [00:43:39] Speaker 06: I really would hope to discuss our cross-appeal a little bit. [00:43:43] Speaker 06: Oh, yeah. [00:43:43] Speaker 05: I want to talk about licenses, too. [00:43:45] Speaker 05: But on venue, why can we say that these two, BASF and Cargill, were partners? [00:43:57] Speaker 05: I mean, the theory seems to be almost like for purposes [00:44:04] Speaker 05: keeping Cargill in the case, we should just treat them as the same. [00:44:08] Speaker 05: And so almost like they're the same entity. [00:44:12] Speaker 05: So we don't even ask the question of whether they are a separate defendant or counterclaim. [00:44:18] Speaker 06: We're not we're not urging you to treat them as a single company But we are saying that for purposes of their partnership here The acts of one are attributed to the act to attribute to the other just as the court said in its on bond decision in Akabai But I think the basis for that is the agreement itself like the the agreement between them Which has the division of responsibility? [00:44:42] Speaker 06: That's attached to a filing that is not in the appendix but attached to a filing in the district court at ECF 130 [00:44:48] Speaker 06: And this is going to be a long citation, but Exhibit 1 to that filing is the agreement, so you can see for yourself what they've agreed to do as respect to each other. [00:44:58] Speaker 06: In Annex 1 to that agreement, and I believe it's page 37, they agree that BASF will be responsible for filing patents on Project Canola. [00:45:18] Speaker 06: So that basically is where this idea of a partnership comes from. [00:45:22] Speaker 06: And I think that the district court correctly recognized that the two companies were working together. [00:45:28] Speaker 06: They didn't necessarily get each company to sign off on each individual action. [00:45:34] Speaker 06: But that's exactly what joint infringement doesn't require, as the court said in Akamai, when you have two companies working together or two infringers working together. [00:45:42] Speaker 06: Then within the scope of their partnership, the acts of one are attributed to the other. [00:45:46] Speaker 06: I think it's as simple as that for a lot. [00:45:49] Speaker 05: So to agree with the court below, we have to borrow from Akamai and think of this as an Akamai situation? [00:45:59] Speaker 05: I think whether you see it as inducement or joint infringement that... I mean, what I'm troubled by is I'm trying to figure out how would I write an opinion that says, yeah, this is fine. [00:46:08] Speaker 05: We can just slap these two people together and call them a partnership and move on. [00:46:13] Speaker 06: In any venue case in which you're relying on the has committed acts of infringement in the district, you're necessarily going to be relying on somewhat incomplete allegations because it necessarily comes up at the Rule 12 stage before there's been a ton of discovery, before everything has been hashed out. [00:46:32] Speaker 06: And you're not making a final binding decision of infringement that they are responsible for each other's actions definitively. [00:46:42] Speaker 06: In a case where 1400B applies and you're relying on that prong of it, you are saying that it's good enough for venue purposes that the claimant has alleged that they are jointly responsible. [00:46:57] Speaker 06: And I think that really is sufficient here. [00:47:01] Speaker 03: Was the Akamai standard itself invoked in the district court, either by the district court or to the district court? [00:47:08] Speaker 06: Well, the district court referred to it as a matter of partnership. [00:47:12] Speaker 06: But I think that he did not suggest that that's a matter of the agreement characterizing itself as a partnership. [00:47:20] Speaker 06: To the contrary, he said that the agreement doesn't characterize itself as a partnership. [00:47:24] Speaker 03: He just claims it, right? [00:47:26] Speaker 06: Yes, but he says that doesn't matter for purposes of whether one is responsible for the actions of the other. [00:47:31] Speaker 06: And while he didn't cite Akamai, I took this to be, in substance, the same thing. [00:47:37] Speaker 06: Akamai, as you know, relies on the restatement of torts and the principles that apply to joint tort feesers because for everything they do within the scope of their partnership, one is the agent of the other. [00:47:52] Speaker 06: I took that to be what he's saying. [00:47:53] Speaker 02: All right, so let's hear from the other side. [00:47:56] Speaker 02: We'll save your rebuttal. [00:47:57] Speaker 02: These are complex issues that we're getting into. [00:48:16] Speaker 02: Ms. [00:48:16] Speaker 02: Jackson. [00:48:17] Speaker 01: Thank you, Your Honors. [00:48:19] Speaker 01: Just a couple of quick points, one on written description, one on ownership, [00:48:23] Speaker 01: First, with respect to Centicor, I think the distinction that Mr. Jay drew for you, Judge Toronto, that that involved an antibody and this involved a blueprint isn't quite right. [00:48:34] Speaker 01: The claims in Centicor had to do with an antibody, but the process that was described in the specification was a blueprint for a human antibody. [00:48:44] Speaker 01: And what the court found there was that that was not sufficient. [00:48:47] Speaker 01: That was not substantial evidence supporting a written description. [00:48:51] Speaker 01: What Mr. Jay didn't talk about as well is Boston Scientific from 2011, this court's Ariad on bank decision from 2010, Purdue Pharma from 2000. [00:49:02] Speaker 01: All of those actually involve the types of discussions and specifications that we're talking about where you have a passing mention of a claim or of a particular set of projects that are within a particular range. [00:49:18] Speaker 01: But there is no indication that there is anything special about that particular passing mention that makes its way into the actual patent claim. [00:49:27] Speaker 01: There is simply not enough to constitute a written description, just as in Sentecor, just as in Ariad, just as in Pinnip, which is another case where this court withdrew a reversal of a judgment of a matter of law denial. [00:49:42] Speaker 01: All of those are in exactly the same posture this is. [00:49:44] Speaker 01: This is not new to this court. [00:49:46] Speaker 01: With respect to ownership, Mr. Jay took issue with the smoking gun I offered. [00:49:51] Speaker 01: I'll offer two more. [00:49:53] Speaker 01: The first is, two more weapons. [00:49:55] Speaker 01: The first is with respect to Dr. Singh's own testimony, appendix 8995 to 8996. [00:50:02] Speaker 01: Dr. Singh admits that the B patent, the patent that Cicero is challenging, incorporated, quote, results generated in 2008-2009. [00:50:13] Speaker 01: which was the time after this collaboration was complete. [00:50:18] Speaker 01: The other smoking gun I would point you to is Appendix 12308. [00:50:23] Speaker 01: And this is the 2009 progress report. [00:50:26] Speaker 01: And one of the things the progress report talks about is that the first generation construct that they tried didn't detect the presence of any long-chain fatty acids. [00:50:36] Speaker 01: But then they go on. [00:50:37] Speaker 01: And they say disappointing result, but then it allowed us to identify and remove some bottlenecks, [00:50:42] Speaker 01: In 2008, we tested both single and dual EPA DHA construct strategies. [00:50:48] Speaker 01: These constructs contain various combinations of CSIRO plus international collaborator genes. [00:50:57] Speaker 01: And those constructs are what resulted in the good results that led to the patents as we understand them. [00:51:04] Speaker 01: So with respect to the constructs and the ownership, I think it's clear from CSIRO's own or GRDC's [00:51:12] Speaker 01: at that point, own discussion that these constructs, these genes that were incorporated into the patent form the basis of the joint results that we're talking about. [00:51:22] Speaker 05: Can we talk about the exclusion of certain licenses in the royalty analysis? [00:51:27] Speaker 01: Certainly. [00:51:29] Speaker 05: I guess I'm concerned about that choice by the judge below to exclude those partnership agreements and yet permit and allow into the record other partnership agreements. [00:51:44] Speaker 05: It feels inconsistent. [00:51:45] Speaker 01: Yes, I think that there's one [00:51:49] Speaker 01: Misunderstanding perhaps when we talk about excluding the licenses no license was excluded The district judge and his discretion considered the license that I think you're referencing judge can which was the license between the Joint partnership of new seed and Cicero and GRDC. [00:52:07] Speaker 01: He considered that license He didn't exclude it. [00:52:10] Speaker 05: So what if I were to read the record as him having excluded it? [00:52:14] Speaker ?: I [00:52:16] Speaker 01: I don't want to resist your question, but I don't think you can read the record as him having excluded it. [00:52:22] Speaker 01: I think what he did is consider that license and say, this license isn't sufficiently comparable in my view. [00:52:29] Speaker 01: And remember, this court has said with respect to royalties, this is not an exact science. [00:52:34] Speaker 01: So what the judge said was, this isn't sufficiently comparable. [00:52:37] Speaker 01: This is a complicated, not arm's length agreement among a number of business partners. [00:52:43] Speaker 01: So I'm going to declare that not sufficiently comparable. [00:52:46] Speaker 01: The expert that offered the three licenses for BASF, he found more persuasive and credible, but even those licenses, he didn't find immediately on point, completely comparable. [00:52:58] Speaker 01: He took those licenses that Mr. Napper offered, the expert that he found more credible, and concluded that with respect to those licenses, there were differences between this case [00:53:10] Speaker 01: and those warranted some upward adjustments in what Mr. Napper had recommended. [00:53:16] Speaker 01: Upward adjustments both from the royalty rate and from the lump sum payment. [00:53:22] Speaker 01: So he adjusted it up from 1 point something percent to 3 point something percent. [00:53:26] Speaker 05: So then you're saying the right way to look at what happened below is the judge did allow in and consider the new seat agreement, the Cargill agreement, but just found them [00:53:40] Speaker 05: a little too remote and to be actually factored into the royalty rate? [00:53:48] Speaker 01: I think, yes. [00:53:49] Speaker 05: I think there's a significant... Because obviously they weren't actually considered and worked into the royalty analysis in the end. [00:53:58] Speaker 01: Right. [00:53:58] Speaker 01: I think the judge's royalty analysis, again, brought in a number of different factors, including some upward adjustments that he made. [00:54:08] Speaker 01: Upward adjustments he made in light of the jury verdict. [00:54:10] Speaker 05: I understand what he did with the other licenses. [00:54:14] Speaker 05: I'm just focused right now on these two. [00:54:17] Speaker 01: So I think the best way to say it Judge Chen is that there is a difference between excluding and considering and rejecting. [00:54:24] Speaker 01: And the district judge, as district judges do all the time with evidence that's proffered about royalties, considered the new seed Cicero GRDC agreement and decided that that non-arms length agreement, which by the way doesn't even trigger the kind of astronomical royalties we're talking about until $46 million in net sales is met. [00:54:46] Speaker 01: So that alone I think describes why the judge might not have [00:54:51] Speaker 01: Otherwise accepted it, but he considered it. [00:54:54] Speaker 01: He rejected it. [00:54:55] Speaker 01: He looked at other comparators He decided those weren't quite right either and then he made a series of decisions about adjusting up or down Based on his assessment of all of the evidence and testimony that he heard in front of him And we think he landed in a reasonable place Thank you [00:55:30] Speaker 02: Mr. Davis, you have one minute for your cross appeal. [00:55:35] Speaker 00: Thank you, Your Honor. [00:55:36] Speaker 00: Very briefly, as far as I'm aware, there was no discussion for the district court or in the briefing at all about Akamai and its applicability to this particular instance. [00:55:49] Speaker 00: We don't believe that there's any applicability to Akamai here, specifically as it relates to the allegation that BASF and Cargill were partners. [00:55:58] Speaker 00: The district court didn't specifically make any finding other than to just state on the record that he believed them to be partners. [00:56:06] Speaker 00: More importantly, I think in response to Judge Toronto's question when I was before your honors the first time, you asked about particular instances in which parties could be charged with the actions of another. [00:56:18] Speaker 00: And I would just point to this court's decision in Valiant from last November. [00:56:22] Speaker 00: Obviously, that's a slightly different context because it's a Hatch-Waxman situation, but that was an instance in which the defendants were actually related entities. [00:56:31] Speaker 00: They were all Miley entities. [00:56:33] Speaker 00: One was responsible for filing the Hatch-Waxman. [00:56:39] Speaker 03: I wonder if that actually is easier to find, perhaps, that separate corporations as long as [00:56:51] Speaker 03: their forms are being respected are not to be collapsed into one, then it may be if two corporations, whatever their ownership relationships are actually in business together. [00:57:07] Speaker 00: I mean, it may be, Your Honor. [00:57:10] Speaker 00: Again, I think that exists along a continuum, and the court would need to look at the facts. [00:57:14] Speaker 00: But I point to the Valiant case as an example in which this court concluded that even though there were three closely related entities, [00:57:25] Speaker 00: The venue finding was proper as to one but not as to the other two and there are vehicles that all of the parties and their able counsel knew about about what you could do in the instance in this in this case in which the third party counterclaim was filed against both [00:57:43] Speaker 00: BASF and Cargill, what ZYRO could have done was to file a separate lawsuit in a jurisdiction and venue in which personal jurisdiction and venue against Cargill was proper and then seek an MDL or some other provision to make that happen. [00:57:59] Speaker 00: That didn't happen here and we think that was error and we think as a result the venue findings should be reversed. [00:58:06] Speaker 02: Okay, thank you Mr. Davis. [00:58:19] Speaker 02: And Mr. Jay, you have the last word on your cross appeal. [00:58:26] Speaker 06: Thank you, Your Honor. [00:58:26] Speaker 06: Just a couple of points. [00:58:27] Speaker 06: And Judge Gerardo, it was HTC after all at page 1357. [00:58:30] Speaker 06: I'm sorry about that. [00:58:32] Speaker 06: So a couple of responses to the second and third smoking weapons that my friend attempted to deploy. [00:58:39] Speaker 06: I think we've responded to each of those in the briefing, the first of them at page 10 of our gray brief, which is about the results generated in 2008, 2009. [00:58:46] Speaker 06: It's exactly the point. [00:58:51] Speaker 06: Collaboration results didn't come in until late later in 2009. [00:58:54] Speaker 06: I would art when we'd already filed for the groupie patent the [00:59:00] Speaker 06: The other one had to do with the failure of a construct. [00:59:05] Speaker 06: But there's a lot of testimony, both from Dr. Singh and his colleague, Dr. Petri, that CSIRO had what they called plans B and C, which were other attempts to do this research, but not with the original blueprint. [00:59:20] Speaker 06: And so at pages 35 to 36 of our red brief, we give you the citations for why that is not [00:59:26] Speaker 06: evidence of the failure of the original construct the Delta 6 pathway that winds up in the patents. [00:59:33] Speaker 03: What was the point you made about the very first thing of 2008-2009, not the other construct? [00:59:40] Speaker 06: My friend quoted from an email about results generated in 2008-2009. [00:59:47] Speaker 06: The citations are at page 10 of our gray brief that [00:59:52] Speaker 06: the the timing for that argument doesn't work because the results that he's talking about which are in the group B patent predate the completion of the evaluation and it certainly there's no so at most there's a there's a timing coincidence that the evaluation is going on but the evaluation hasn't even [01:00:15] Speaker 06: Concluded and there's no evidence that anything from the evaluation actually makes its way into these patents Nothing not even that the jury could could make that decision based on [01:00:25] Speaker 06: On remedy, of course, one of our points is that the judge should not have been making this decision at all, that it should have gone to the jury on at least the past damages. [01:00:37] Speaker 06: But certainly on the comparability point, if it was going to remain with the judge, the agreements that he relied on were [01:00:49] Speaker 06: Exactly were similarly situated to the agreement that he refused to rely on in that they were not their licenses They were collaboration agreements or or that they had something mutual so the the Judges reasoning doesn't hold up on its own terms. [01:01:05] Speaker 06: That's enough I think to conclude that it's an abuse of discretion and of course our primary point on remedy has been that if you are [01:01:10] Speaker 06: reinstate the Group B patent, you would need new proceedings on remedy in any event, so you might not need to reach that issue, although I do think you would need to reach the question of who the fact finder would be in the first instance on remedy. [01:01:23] Speaker 03: Is there any link in this case between the venue question and the remedy question? [01:01:30] Speaker 03: If we were to conclude that Cargill needs to be dismissed, what effect, if any, would that have [01:01:40] Speaker 03: any of the other questions, but I'm thinking particularly about remedy. [01:01:44] Speaker 06: Certainly, if there were going to be new proceedings on remedy, that could be addressed there. [01:01:52] Speaker 06: But I don't think that it would change either the need for an injunction or the evidence on which you would rely for a properly computed royalty before the jury. [01:02:08] Speaker 06: So in other words, [01:02:10] Speaker 06: If Cargill were let out of the case, I don't think that would be a basis for setting aside any of the work that's been done. [01:02:19] Speaker 06: But of course, we're appealing a number of errors in it. [01:02:22] Speaker 03: Pardon? [01:02:22] Speaker 03: You want to add to? [01:02:24] Speaker 03: what the remedy you've gotten. [01:02:27] Speaker 06: Yeah. [01:02:27] Speaker 06: The only thing I can think of that's different is that on willfulness, the judge relied in part on the notion that BASF came into court and sought a declaratory judgment. [01:02:41] Speaker 06: And of course, Cargill did not do that. [01:02:44] Speaker 06: And so if Cargill were out of the case, one of our criticisms of that reasoning would be taken away. [01:02:50] Speaker 06: And that criticism is that, well, that doesn't apply to Cargill. [01:02:52] Speaker 06: We have we have we have other criticisms of that reasoning, but I think that's that's the only Cargill specific thing I can think of for the For the remedy, but ultimately Cargill hasn't it's never really grappled with the statutory language Explained why it was that we simply filed a civil action for patent infringement that we personally brought a civil action for patent infringement against them we brought a counterclaim and added them to the case and I think that that [01:03:19] Speaker 06: That means that this is not a venue, a case where the venue statute applies at all. [01:03:24] Speaker 06: Okay. [01:03:24] Speaker 06: Anything else? [01:03:25] Speaker 06: Anything else? [01:03:25] Speaker 06: Anything else? [01:03:26] Speaker 02: Thank you. [01:03:27] Speaker 02: Thanks to all counsel. [01:03:28] Speaker 02: The case is taken under submission. [01:03:30] Speaker 02: Thank you very much.