[00:00:00] Speaker 05:
Our third case for, uh, this morning is 20 dash 17 99 filter pharmaceuticals, LLC versus aspera ink.

[00:00:11] Speaker 05:
I'm Mr. Lancaster.

[00:00:12] Speaker 05:
You reserved two minutes of rebuttal time.

[00:00:15] Speaker 05:
We're ready to proceed when you are.

[00:00:18] Speaker 03:
May it please the court counsel.

[00:00:21] Speaker 03:
We make a very limited argument.

[00:00:24] Speaker 03:
We asked this court to reverse the judgment of inequitable conduct.

[00:00:28] Speaker 03:
because the record last evidence that Belcher intentionally misled the PTO in any respect.

[00:00:36] Speaker 03:
And indeed, we make a stronger argument than that.

[00:00:40] Speaker 03:
The district court recognized that nothing, no art, whether the inequitable conduct references or other art, anticipated the two claims in issue.

[00:00:54] Speaker 03:
And we would submit that none of the three

[00:00:57] Speaker 03:
inequitable conduct references would have invalidated the claims under section 103 either.

[00:01:03] Speaker 03:
No prior art amongst those three references had the combination of pH range, low overage, and stability that the Belcher invention did.

[00:01:17] Speaker 03:
And I'd like to say something about the background

[00:01:21] Speaker 01:
Could I just ask you one question about what you just said?

[00:01:24] Speaker 01:
Do I remember correctly that the claims don't require any, they don't say anything about overage?

[00:01:31] Speaker 03:
They speak in terms of concentration.

[00:01:38] Speaker 03:
And obviously, overage and concentration are the same thing when volume is constant.

[00:01:46] Speaker 03:
becomes pertinent.

[00:01:48] Speaker 03:
I think when you're looking at the state of mind of the Belcher participants, particularly Mr. Rubin, there's evidence in the record that he treated those two terms as being, uh, synonymous or close to synonymous.

[00:02:04] Speaker 03:
And that, although the claims don't speak in terms of overage, that's what he intended.

[00:02:11] Speaker 03:
We think that the district court appropriately relied on that distinction.

[00:02:15] Speaker 03:
in finding no infringement, but we think the inequitable conduct analysis is different.

[00:02:23] Speaker 02:
Can I just ask you a mundane question, just to be clear.

[00:02:29] Speaker 02:
This case arises under the post-AIA version of the statute, is that right?

[00:02:37] Speaker 02:
That's correct, Your Honor.

[00:02:39] Speaker 02:
And the JHP adrenaline product

[00:02:44] Speaker 02:
It's an anticipatory thing, not, not, it's not a publication.

[00:02:51] Speaker 02:
It is rather a product that was either in public use or on sale or otherwise available to the public.

[00:02:57] Speaker 02:
Is that right?

[00:02:58] Speaker 03:
That's correct.

[00:02:59] Speaker 03:
But, but I think if the court appreciates the district court found that it was not anticipatory.

[00:03:06] Speaker 03:
It found that it was material.

[00:03:08] Speaker 02:
Right.

[00:03:08] Speaker 02:
I'm trying to get, get my hands on what it is that this product is, whether it's document.

[00:03:14] Speaker 02:
or whether it's an actual physical product that was, let's say, on sale, whose elements can be proved a number of different ways, including through documents.

[00:03:28] Speaker 02:
That's correct, Your Honor.

[00:03:29] Speaker 04:
OK.

[00:03:31] Speaker 03:
And so I'd like to return to an unanswered question, one not mentioned by the district court, who obviously generally wrote a very careful opinion.

[00:03:43] Speaker 03:
And that is if this invention was so obvious and if it was so apparent to Mr. Rubin that it was obvious that he was guilty of inequitable conduct, why did it take decades of effort for the industry giants, including Haspera, to produce the product that Belcher succeeded in producing?

[00:04:08] Speaker 03:
And before I say a word about each of the three references that the district court relied on for inequitable conduct, I want to say a little bit more about what makes this record one, that finding of intentional wrongdoing is implausible.

[00:04:29] Speaker 03:
Of course, Belcher wanted to get approval from the SBA as promptly as possible.

[00:04:35] Speaker 03:
Of course, it wanted to get a patent as soon as possible, and that supplies the motivation that Haspera emphasizes.

[00:04:43] Speaker 03:
But there's a number of facts that argue against any plausible motive to misrepresent.

[00:04:51] Speaker 03:
A central irony of this case is that the key elements of the two claims at issue, the pH levels, were written not by Belcher, but through an amendment by the examiner.

[00:05:06] Speaker 03:
And that process would assume under Haspire's theory a Machiavellian level of sophistication that few applicants would have and certainly an inexperienced applicant like Belcher would not have.

[00:05:24] Speaker 05:
Mr. Lancaster, this is Judge Raina.

[00:05:29] Speaker 05:
It would certainly help me if you were to

[00:05:32] Speaker 05:
base your arguments on the standard that we're looking at for this case, the district court made a number of findings regarding information that was either withheld, committed, or misrepresented to the PTO.

[00:05:49] Speaker 05:
And one of the elements there is whether those factors, those representations or omissions, are material.

[00:05:57] Speaker 05:
Can you address that particular issue?

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

[00:06:02] Speaker 03:
So, of course, the Inequitable Conduct Test is a two-part analysis.

[00:06:07] Speaker 03:
The first part being a question of whether the withheld references are material.

[00:06:14] Speaker 03:
And the second part being whether they're not being provided to the PTO are a matter of bad faith, of dishonesty.

[00:06:29] Speaker 03:
There are different standards depending upon which components you're looking at.

[00:06:36] Speaker 03:
When you're looking at credibility based upon demeanor, then there is an abuse of discretion standard.

[00:06:46] Speaker 03:
When you're looking at an issue whether it's documentary or objective evidence that's available, then a clear error standard applies.

[00:06:57] Speaker 03:
One of the cases that we cite establishes that being an unpersuasive or defensive witness, as Mr. Rubin would probably be first to admit that he was, that doesn't necessarily establish inequitable conduct.

[00:07:13] Speaker 03:
The district court was obviously very frustrated by the testimony of Belcher witnesses, but that alone, as is indicated in the American CalCAR case that we cite,

[00:07:28] Speaker 03:
is not sufficient to establish inequitable conduct.

[00:07:35] Speaker 03:
Did I answer your question, Your Honor?

[00:07:38] Speaker 05:
No, no, really.

[00:07:39] Speaker 05:
You kind of recited back our law under third sense.

[00:07:43] Speaker 05:
So let me ask you this way.

[00:07:48] Speaker 05:
Didn't Bilcher, for example, have an obligation to clarify the arguments and the specification

[00:07:54] Speaker 05:
and made to the examiner that the pH range was novel and unexpected.

[00:08:02] Speaker 03:
The situation from its application is the same as the situation for the final amendment.

[00:08:11] Speaker 03:
The application did not recite pH levels for the only pair of claims that included the pH

[00:08:23] Speaker 03:
that's an issue here, the 2.8 to 3.3 range.

[00:08:28] Speaker 05:
The arguments were made in the... Okay, let me ask you this way.

[00:08:32] Speaker 05:
Is a pH range that's disclosed in the broad claims of 6 and 7, were they not unexpected?

[00:08:46] Speaker 03:
The effect of that pH range was unexpected to Belcher, yes.

[00:08:55] Speaker 05:
And the misrepresentation is that they were, these were novel and unexpected.

[00:09:03] Speaker 03:
That's what the claims misrepresentation is.

[00:09:06] Speaker 05:
Yes.

[00:09:07] Speaker 05:
Can you explain to me why that's not a material misrepresentation?

[00:09:13] Speaker 03:
Because the statements have to be looked at in the context in which they were made and in a preservative free

[00:09:25] Speaker 03:
sulfite-free composition, I don't think there's an argument that there's any misrepresentation.

[00:09:32] Speaker 03:
And that was the context in which Belcher was making those arguments.

[00:09:38] Speaker 03:
In its response to the office action, it sent in a 13-page response.

[00:09:46] Speaker 03:
And virtually all of it related to the preservative-free, sulfite-free invention.

[00:09:56] Speaker 03:
And it's ironic, as I say, that the claim that eventually emerged and was litigated, the pair of claims did not have those two limitations, which is how the patents started off being prosecuted.

[00:10:14] Speaker 05:
So the patents did not have, claims six and seven did not have the limitations of preservative free and low to no overage.

[00:10:23] Speaker 05:
Correct?

[00:10:25] Speaker 03:
They did have the low to no overage, but they were not sulfite and preservative free.

[00:10:36] Speaker 03:
When I say they have low to no overage, there was earlier a question about the comparison of concentration to overage.

[00:10:45] Speaker 03:
And as I said, there is evidence in the record that Mr. Rubin treated those two terms as equivalent.

[00:10:54] Speaker 03:
So that's what I meant when I answered your question, Your Honor.

[00:10:58] Speaker 03:
What the claim says is 1.0 to 1.06 milligrams per milliliter.

[00:11:07] Speaker 03:
And with the volume that's assumed there, that is the same as up to a 6% overage.

[00:11:26] Speaker 03:
Just to say a couple other things about the, what we think is the implausibility of a finding of intent.

[00:11:37] Speaker 03:
This is not a case where someone might want to obtain a patent to bully a smaller or less sophisticated competitor.

[00:11:50] Speaker 03:
This is a patent that Belcher knew Pfizer would likely challenge.

[00:11:55] Speaker 03:
the large producer of JHP was also in this field.

[00:12:01] Speaker 03:
Belcher knew when it got this patent that it would be challenged.

[00:12:05] Speaker 03:
And that's a reason that it would not intentionally push through a patent that it knew to be invalid or obvious.

[00:12:18] Speaker 03:
So if I could say a word about the three references,

[00:12:23] Speaker 03:
No, why don't I go ahead and stop there, Your Honor, and I'll deal with specific references to the extent that Husbeam Council raises them.

[00:12:52] Speaker 05:
Let's hear now from Counselor Frimas.

[00:12:57] Speaker 00:
Good morning, Your Honor, and may it please the Court.

[00:13:01] Speaker 00:
Belter has offered no basis for this Court to conclude that Judge Stark committed clear error or abuse at discretion in finding that Darren Rubin committed inequitable conduct.

[00:13:14] Speaker 00:
Mr. Rubin created a fiction throughout the patent specification and the prosecution history

[00:13:22] Speaker 00:
that the claims pH of 2.8 to 3.3 is an inventive feature.

[00:13:28] Speaker 00:
Faced with the examiner's rejection of all the claims in the examiner's first office action, Mr. Rubin distinguished the prior art by leading the examiner to believe that the pH range was, quote, unexpectedly found to be critical by the applicant to reduce the rationalization of L-epinephrine.

[00:13:50] Speaker 00:
That appears at Apex 1073.

[00:13:54] Speaker 00:
That statement, among others in the patent specification that Mr. Rubin drafted, was false.

[00:14:02] Speaker 00:
And Mr. Rubin knew it.

[00:14:04] Speaker 00:
At the time he made that statement to the PTO and others, he knew of no less than three references that showed there was nothing inventive about the pH range of 2.8 to 3.3.

[00:14:20] Speaker 02:
Is it, I'm sorry, and just clarify, the basis of that knowledge were documents or products that were preservative-free or were not preservative-free?

[00:14:35] Speaker 02:
And I'm including sulfide in the preservative.

[00:14:40] Speaker 00:
The answer is both, Your Honor.

[00:14:43] Speaker 00:
The Penske and the JHP adrenaline product

[00:14:48] Speaker 00:
refer to epinephrine formulations that contain preservatives and sulfites.

[00:14:56] Speaker 00:
One of the additional products is a preservative-free, sulfite-free formulation that was manufactured by Belcher's own contract manufacturer, Sintetica, more than 10 years prior to the submission of the patent application.

[00:15:15] Speaker 00:
that old preservative-free sulfite-free formulation of syntheticas had a pH of 2.8 to 3.3.

[00:15:26] Speaker 02:
And it's rather, and just, I'm afraid I'm not so clear about this.

[00:15:32] Speaker 02:
The synthetica stuff was not among the prior art that the district court's obviousness ruling relied on, is that right?

[00:15:43] Speaker 02:
Or do I have that wrong?

[00:15:47] Speaker 00:
You have that right, Your Honor.

[00:15:48] Speaker 00:
The Sintetica product was not among the prior art that formed the basis of the district court's obviousness opinion.

[00:15:55] Speaker 02:
And I'm sorry.

[00:15:58] Speaker 02:
And it's the Sintetica product that is the only one of the three that Mr. Rubin knew about.

[00:16:12] Speaker 02:
that was sulfite-free and preservative-free?

[00:16:16] Speaker 00:
Is that right?

[00:16:18] Speaker 00:
Of the three, it is the only one that is preservative-free, sulfite-free.

[00:16:24] Speaker 00:
That's correct.

[00:16:26] Speaker 00:
But I would point out that Mr. Rubin knew and understood that the claims of the patent included formulations that would include preservatives and sulfite.

[00:16:39] Speaker 00:
There's an email that Judge Stark cites in his opinion where Mr. Rubin notes that Claims 6 and 7 don't require preservative-free, sulfide-free formulations.

[00:16:52] Speaker 01:
And so... With those claims... Excuse me.

[00:16:55] Speaker 01:
This is Judge Stoll.

[00:16:56] Speaker 01:
With those claims, Claims 6 and 7, do you know if they're originally presented in the application?

[00:17:04] Speaker 00:
Claims 6 and 7 were originally presented in the application.

[00:17:09] Speaker 00:
That is correct.

[00:17:13] Speaker 02:
I'm sorry.

[00:17:16] Speaker 02:
The relevance of this is not so clear, but I guess I'm looking at page, appendix page 1025 to 1026, which I think are the original claims.

[00:17:27] Speaker 02:
Six and seven depend on five.

[00:17:31] Speaker 02:
Five says preservative-free and sulfite-free.

[00:17:36] Speaker 02:
Correct.

[00:17:37] Speaker 02:
So it's eight and nine that don't have that limitation, right?

[00:17:44] Speaker 00:
Eight and nine eventually became six and seven, your honor.

[00:17:47] Speaker 00:
Correct.

[00:17:48] Speaker 00:
And they do not have the preservative-free, sulfite-free limitation.

[00:17:56] Speaker 00:
Rather than disclose information about the Stepansky JHP adrenaline product

[00:18:03] Speaker 00:
Since he referenced the JHP adrenaline product and the synthetic product, Mr. Rubin perpetuated the fiction that the pH was inventive by choosing unilaterally not to disclose anything that contradicted those statements.

[00:18:20] Speaker 00:
He told the pH, he told the examiner that the pH was inventive and then he withheld material that showed it wasn't.

[00:18:28] Speaker 00:
And based upon the fiction he created, the examiner allowed the claim.

[00:18:35] Speaker 00:
The examiner's reasons for allowance, which appear at Apex 1088, identify a single reason for allowing the claims.

[00:18:44] Speaker 00:
She was led to believe, quote, there was nothing in the prior art that would teach or suggest the instantly claimed pH range of between 2.8 to 3.3 would result in limited brassimization and impurities as instantly claimed.

[00:19:02] Speaker 00:
In fact,

[00:19:03] Speaker 00:
Each of the three references that Mr. Rubin withheld disclosed that.

[00:19:09] Speaker 00:
As a result of his misleading statements during the prosecution and his failure to disclose relevant information, the examiner was misled into believing that there was nothing in the prior art that would teach or suggest the claims pH range of 2.8 to 3.3 would result in limited rationalization.

[00:19:30] Speaker 00:
The examiner allowed the claim because she was led to believe the fiction.

[00:19:35] Speaker 00:
That's the record in this case, and it fully supports Judge Stark's conclusion that Mr. Rubin engaged in inequitable conduct in connection with the prosecution of the 197 patent.

[00:19:48] Speaker 00:
There's no basis to conclude that he committed clear error, and there's no abuse of discretion.

[00:19:56] Speaker 00:
I want to talk first

[00:19:58] Speaker 00:
about the issue of intent to deceive which counsel raised in his argument.

[00:20:07] Speaker 00:
There's statements in the brief and then we heard again this morning that Mr. Rubin or a suggestion that Mr. Rubin may have been a novice.

[00:20:18] Speaker 00:
That notion is wrong and contradicted by the record.

[00:20:24] Speaker 00:
Rubin was Belter's chief science officer

[00:20:27] Speaker 00:
He was described as the company's head of IP.

[00:20:31] Speaker 00:
His job responsibilities included patent writing and patent prosecution.

[00:20:35] Speaker 00:
He participated in the drafting of the specifications.

[00:20:39] Speaker 00:
He served as the liaison between Patent Council and the CEO of Belcher.

[00:20:44] Speaker 00:
He drafted the response to the initial office action, bragging that he, quote, dug into the case law in connection with preparing it.

[00:20:53] Speaker 00:
With respect to Belcher's development of epinephrine, Mr. Rubin testified, quote, he project-managed everything.

[00:21:02] Speaker 00:
It all led to me.

[00:21:03] Speaker 00:
That appears at Apex 679, 680.

[00:21:06] Speaker 00:
That's the record in the case, and it fully supports the notion that Mr. Rubin knew what he was doing in connection with the prosecution of this patent.

[00:21:20] Speaker 00:
Mr. Rubin also knew that the pH of 2.8 to 3.3 was not inventive or critical.

[00:21:27] Speaker 00:
At the time he wrote the patent specification, at the time he wrote in the specification that, quote, the thought of raising the in-process pH above 2.2 to 2.6 was contradictory to one skilled in the art, he knew that his own contract manufacturer, Syntetica,

[00:21:46] Speaker 00:
had created a preservative-free sulfite-free formulation with the claims pH as far back as 2002, and that Belter considered that pH as old.

[00:21:59] Speaker 00:
He knew that Belter had cited Stepansky in two separate submissions to the FDA, and he emailed that to his regulatory consultant, specifically pointing out Stepansky's findings on racemization had, quote, stood out to him.

[00:22:17] Speaker 00:
He knew about test data about the JHP product showing that it was within, that it had the pH within the claimed range and low levels of impurities.

[00:22:29] Speaker 00:
In spite of all that knowledge, he included misleading statements in the prosecution history that described the pH as an inventive feature and then unilaterally decided to withhold information that contradicted it.

[00:22:44] Speaker 05:
Councilor, is it your argument that Mr. Rubin, that it appears that claims six and seven were drawn to the pre-existing synthetic formulation?

[00:23:08] Speaker 00:
We do not take the position that

[00:23:11] Speaker 00:
the claims 6 and 7 were drawn to the prior Synthetica formulation, but the prior Synthetica formulation was a formulation with a preservative-free sulfite-free formulation within the pH range claimed in claims 6 and 7.

[00:23:36] Speaker 00:
Okay.

[00:23:37] Speaker 00:
On the basis... Sorry, Your Honor, if I cut you off.

[00:23:41] Speaker 05:
No, you didn't.

[00:23:42] Speaker 05:
Go ahead, please.

[00:23:44] Speaker 00:
On the basis of the information known to Mr. Rubin, and in light of his misrepresentation to the contrary, the court appropriately concluded that deceptive intent was the only reasonable inference that could be drawn.

[00:24:01] Speaker 00:
The pH range of 2.8 to 3.3 was not some inventive epiphany.

[00:24:10] Speaker 00:
Belcher's outside regulatory consultant suggested pursuing that pH range because it was a fast path to regulatory approval, and Mr. Rubin knew that.

[00:24:21] Speaker 00:
The same excuses that Mr. Rubin and Belcher proffer in their briefs for why the prior art was not disclosed or why the references were not disclosed were heard and considered by Judge Stark.

[00:24:40] Speaker 00:
who made a determination that those excuses were neither credible nor plausible.

[00:24:47] Speaker 00:
Judge Stark heard Mr. Rubin evade answers and inject the very same attacks on the prior art, including testimony in which Mr. Rubin tried to distinguish the withheld references on the basis that they described high-overage product.

[00:25:02] Speaker 00:
In fact, Judge Stark conducted his own examination of Mr. Rubin

[00:25:08] Speaker 00:
on some of these precise issues, which appears at Apex 723 and 732.

[00:25:17] Speaker 00:
After hearing Mr. Rubin's testimony, including under direct examination from the court, Judge Stark concluded that Mr. Rubin's excuses were neither credible nor plausible, and there was no clear error in his doing so.

[00:25:32] Speaker 00:
In fact,

[00:25:34] Speaker 00:
Judge Stark's determination that Mr. Rubin's excuses weren't credible or plausible is entirely consistent with the record before the court.

[00:25:43] Speaker 00:
The fact that the withheld references were high overage didn't excuse Mr. Rubin's failure to disclose them.

[00:25:51] Speaker 00:
There's not a single mention of the overage in the notice of allowance, and Mr. Rubin never distinguished prior art before the examiner on the basis that Belcher

[00:26:02] Speaker 00:
was pursuing a low-overage product.

[00:26:06] Speaker 00:
The fact that Synthetica and the JHP product included preservatives or sulfites similarly did not excuse Mr. Rubin's failure to disclose them.

[00:26:27] Speaker 00:
The patent included formulations containing preservatives and Mr. Rubin understood as much.

[00:26:34] Speaker 00:
As I noted earlier, he mentioned in an email to the CEO describing claims six and seven as not mentioning preservatives or sulfites.

[00:26:42] Speaker 00:
That appears at Apex 2069 and was relied upon by Judge Stark.

[00:26:50] Speaker 00:
And there's a statement in column five of the patent

[00:26:53] Speaker 00:
beginning at line 27, which appears at FX1001, that shows the so-called inventive methods achieve new limits, quote, even if preservatives and sulfites are optionally included.

[00:27:12] Speaker 00:
In summary, Your Honor, this is a case where Mr. Rubin made multiple statements that the pH was inventive.

[00:27:22] Speaker 00:
The examiner allowed the claims on that basis.

[00:27:26] Speaker 00:
Mr. Rubin possessed multiple pieces of information that contradicted the examiner's express basis for allowance.

[00:27:35] Speaker 00:
And Mr. Rubin failed to disclose any of it.

[00:27:39] Speaker 00:
On the basis of that record, there's no reason to conclude that Judge Stark committed clear error or abused his discretion.

[00:27:49] Speaker 00:
This is a situation where Mr. Rubin made

[00:27:51] Speaker 00:
misleading, incomplete, if not plainly inaccurate statements combined with the active omission of relevant information and fully justifies the court's finding of inequitable conduct.

[00:28:08] Speaker 00:
Thank you, Your Honor.

[00:28:10] Speaker 05:
We thank you, Mr. Fremont.

[00:28:13] Speaker 05:
Mr. Lancaster, you have three minutes.

[00:28:17] Speaker 03:
Thank you, your honor.

[00:28:18] Speaker 03:
I hope to say just a word about, uh, each of the three inequitable conduct references.

[00:28:23] Speaker 03:
Um, starting with synthetic that the most important point about this product is that it was not shown to be prior art, which the court recognized and it's obviousness analysis, but still stated that it should be disclosed.

[00:28:44] Speaker 03:
And we submit that that's a confusion.

[00:28:46] Speaker 03:
of the Rule 56 standard, which would indicate that even non-priorities should be disclosed and the Therosense standard, where the question is whether it would have prevented issuance of the patent.

[00:29:00] Speaker 03:
It couldn't have prevented issuance of the patent.

[00:29:05] Speaker 03:
Council indicated that that product was a preservative-free product.

[00:29:11] Speaker 03:
Yes, it was, but it had a pH level of 2.5

[00:29:15] Speaker 03:
excuse me, 2.4 and high overages up to 14%.

[00:29:21] Speaker 03:
It was a very different product.

[00:29:26] Speaker 03:
Stapensky, that product had overages as high as 10%.

[00:29:32] Speaker 03:
It failed nearly every limitation of claims six and seven.

[00:29:37] Speaker 03:
There was no pH between 2.8 and 3.3 within a commercially reasonable period.

[00:29:46] Speaker 03:
And almost all the testing, that's the point he describes, is well above 3.3.

[00:29:53] Speaker 03:
That's the subject of the chart, the diagram that's at the opening Belcher brief at app 34.

[00:30:07] Speaker 03:
And finally, the JHP product.

[00:30:12] Speaker 03:
Here, the most important distinction is

[00:30:15] Speaker 03:
testing that a spirit did and what Mr. Rubin actually knew.

[00:30:22] Speaker 03:
And the district court did not distinguish between those two things.

[00:30:26] Speaker 03:
Then obviously Mr. Rubin cannot be held responsible for a spirit testing that he didn't have access to.

[00:30:35] Speaker 03:
That product was also different because it wasn't sulfide and preservative free.

[00:30:41] Speaker 03:
The context that every independent claim

[00:30:44] Speaker 03:
up until the final amendment by the examiner, and it was also a high-overage product, 9% to 13%.

[00:30:53] Speaker 03:
So of those three pieces of allegedly withheld, well, not disclosed prior art, one was not prior art at all, Synthetica, one was not known in relevant respect to Mr. Rubin, GHP, and the third, Stapensky,

[00:31:13] Speaker 03:
fails to meet every key limitation of the claims.

[00:31:17] Speaker 02:
This is just right.

[00:31:18] Speaker 02:
Can I just ask you one thing?

[00:31:20] Speaker 02:
You said that every independent claim up till the end required preservative-free and self-like-free.

[00:31:29] Speaker 02:
I thought original claims eight and nine did not.

[00:31:32] Speaker 02:
And eight is an independent claim.

[00:31:35] Speaker 03:
Yes, I'm sorry.

[00:31:37] Speaker 03:
But those two claims, what I'm focused on is as

[00:31:43] Speaker 03:
Haspera focuses on is it 2.8 to 3.3 range.

[00:31:48] Speaker 03:
And so those two claims don't have that range.

[00:31:52] Speaker 03:
Okay.

[00:31:52] Speaker 03:
I was speaking a little bit sloppily.

[00:31:55] Speaker 03:
Okay, okay, thanks.

[00:32:00] Speaker 05:
Okay, I think your time is up, sir.

[00:32:02] Speaker 05:
Do you want to conclude real quick?

[00:32:08] Speaker 03:
We submit that for the reasons that we've stated,

[00:32:12] Speaker 03:
There isn't a basis for inequitable conduct here, and we ask this Court to reverse that finding.

[00:32:18] Speaker 03:
Thank you all, Your Honors.

[00:32:20] Speaker 05:
Thank you very much, and we thank all parties for the arguments this morning.

[00:32:25] Speaker 05:
This last case is now submitted, and this concludes the arguments for this morning.

[00:32:31] Speaker 01:
The Honorable Court is adjourned from day to day.