[00:00:01] Speaker 00:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and its honorable court.

[00:00:12] Speaker 04:
Good morning, everyone.

[00:00:13] Speaker 04:
The first argued case here is number 20, 1996, Fureal Foods LLC against Hamilton Beach Brands, Incorporated.

[00:00:22] Speaker 04:
Mr. Foster, please proceed.

[00:00:25] Speaker 03:
Thank you, Your Honor.

[00:00:26] Speaker 03:
Your Honor, this is William Foster on behalf of Hamilton Beach and Hershey Creamery Company.

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This case has a long and complicated history whereby we had an initial judge who conducted Markman and oversaw the first part of the case.

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And then a late stage was reassigned due to the initial judge's retirement.

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As well as procedural posture, there was a number of key legal errors that were committed in the pretrial phase of this case.

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And these key errors were in a number of areas of well-established patent law.

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The first of which was that the trial court excluded a published Japanese patent utility model.

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The court held that this Japanese utility model was not prior art because it was not publicly accessible even though it was published in the Japanese utility model gazette.

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What's your response to what seems to be the fundamental issue here and that was the position

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the powerful and successful position that was taken initially before the office that this reference was not available.

[00:01:32] Speaker 03:
Well, Your Honor, I mean, Your Honor, one of the key things, I mean, I want to start off.

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One of the things that the, that Friel's counsel said is this was governed by an abusive discretion standard.

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And this is actually reviewed to know whether it gets a plenary review, whether a reference is a prior, it's a question of law.

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So therefore, it is governed by a Federal Circuit precedent.

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And if we take a look at it, if we take a look at JAAS, it did not mean to exclude this type of reference because it was already disseminated.

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In fact, there's a complicated issue here that has been... Please answer my question.

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How do you reconcile the positions that were taken with respect to this reference?

[00:02:13] Speaker 03:
Well, Your Honor, they're a different question.

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I mean, the declarations that were submitted with respect to whether or not it was reasonable

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for the searchers to find the reference in response to an IPR stop motion, which is not the same legal question that's in JAAS, whether or not the reference has been disseminated such that it's publicly available, so that one of ordinary skill in the art could access it.

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Despite their quite strong swan representations from people who have more than ordinary skill in the art, that they could not find it.

[00:02:44] Speaker 03:
Your Honor, they aren't of ordinary skill in the art.

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These are just searchers that we hired and the declarations outlined the parameters of their search and they said why they couldn't find it was essentially... Yes, Mr. Foster, this is Judge Prost.

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I'm just following up on Judge Newman's question, which I'm not sure you've really answered yet.

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But this might be a different case if maybe the expert testimony had been a little softer or had been more discreet.

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But they used the term the most diligent search through global databases would not have uncovered this.

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I, too, I think the suggestion by Judge Newman is one I agree with, is how you avoid the estoppel having made those assertions in order to avoid the 315

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problem.

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Well, Your Honor, I don't think it's a fair representation of the declarations.

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It talked about the particulars of their search.

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It was, and first of all, it wasn't expert testimony, it was fact testimony.

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They just, they outlined the conditions of their search and they just said why they couldn't find the reference.

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In fact, they were able to locate the reference when they were given the number, and as opposing counsel argued in the IPR's double motion,

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In fact, it was found by a Japanese search firm, NGB Company.

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It's in their briefing.

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So it was able to be found.

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It's just it was reasonable for these searchers not to find it conducting English language keyword searching.

[00:04:13] Speaker 02:
Mr. Foster, this is Judge Chen.

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Let's assume for the moment that the judge below found that the sworn declarations you provided said essentially,

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Objectively speaking, no reasonable person that's highly motivated to find a relevant prior art would have been able to uncover this Japanese reference.

[00:04:44] Speaker 02:
Wouldn't that go a long way to supporting a judicial estoppel conclusion for whether this is a publicly accessible reference?

[00:04:54] Speaker 03:
Well, Your Honor, that's not what the declaration said, though.

[00:04:57] Speaker 02:
I'm asking you a hypothetical, then.

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That's really what I'm trying to get at.

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I think all three of us on the court here are zeroing in on judicial estoppel and trying to understand the parameters of judicial estoppel.

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And basically, my question to you is, under my hypothetical, why wouldn't there be judicial estoppel?

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Well, because there are different legal questions.

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There are different legal standards.

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I understand they are different legal questions.

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And there's probably some daylight between those two standards, one being estoppel for an IPR and the other being public accessibility for a prior art reference.

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Nevertheless, I think it is possible for judicial estoppel to apply if your sworn declarations went very far.

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to such a degree in their proclamations that they actually touch on and preclude a counter statement later by your side that these were publicly accessible documents.

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And so that's what I'm trying to figure out from you.

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Don't you think that's theoretically possible?

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Well, Your Honor, I mean, first of all, I'd like to note that just a judicial estoppel wasn't argued below.

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But also, I don't think it's theoretically possible.

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Take that to the side and assume that at A90, we can plainly see that the judge below relied in part on a judicial estoppel theory for precluding you from asserting Sato as a prior art reference.

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So can we get back to my hypothetical?

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Oh, yeah, sure.

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Do you remember it?

[00:06:48] Speaker 03:
Yes.

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Is the declaration so strong?

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Could someone say it can't be found, therefore it's disposal, whether or not it's publicly accessible?

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I still think under the test of jazz, you still have to look at the circumstances of the publication.

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I mean, there's still different facts.

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And just because someone says they can't find a particular reference, you still have to evaluate the circumstances of the publication.

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As you know, Your Honor, the jazz has been there.

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What if the declaration said, objectively speaking, no highly motivated, experienced, reasonable person would be able to find this prior art reference?

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Why wouldn't that be enough?

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Well, that would be their opinion and wouldn't necessarily reflect the actual facts.

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I think you have to look at facts versus opinion.

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We have documentary evidence about the publication of the reference.

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So if it has been disseminated, I still think you have to go back to the jazz test, where someone learning skill in the art could possibly locate the reference.

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You still have to evaluate the reference.

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Another concern I had was in this motion to preclude you from relying on Sato as a prior art reference,

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In your opposition, you never answered for all those prior sworn declarations you used, relied on, and succeeded on avoiding IPR's topple.

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Is that right?

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I don't understand, Your Honor.

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Your opposition to the other side's motion to preclude you from relying on Sato?

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Right, Your Honor.

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Prior art reference.

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In that opposition, did you ever answer for your prior sworn declarations that you had relied on previously

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to successfully avoid IPR-STOPL?

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Ryan, I think the way we addressed it was that the declaration just stood for the proposition that these searchers conducted a diligent search and they couldn't find the reference because it was conducted with English language keyword searching and that the SATO reference was untranslated.

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And in fact, going to what the other side acknowledged in their briefing is that in asserting IPR-STOPL, the NGB readily found it because it was a Japanese language reference.

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So your opposition did explain away your declaration?

[00:09:10] Speaker 03:
Your Honor, I believe it did.

[00:09:12] Speaker 03:
We always have asserted that the declarations, again, were specific about English language keyword searching.

[00:09:20] Speaker 03:
And if it's not in the opposition, it was definitely in the oral argument before the court.

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I mean, one of the issues here, too, is this was decided in a motion in Lemonay.

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And there's a scant record in the evidence from the record to even review.

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The court only looked at the declaration, didn't look at any of the circumstances of the publication.

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So there's almost nothing to review about the CEDAW reference.

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It was just a three-page motion in limine.

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And this is clearly a summary judgment of whether or not we could use the CEDAW to invalidate patents.

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So even procedurally, this case could be remanded on that basis alone, given that the court never addressed the particulars of CEDAW.

[00:09:58] Speaker 00:
Mr. Foster, this is Judge Prost.

[00:10:00] Speaker 00:
Can I move you on to another issue before your time runs out?

[00:10:04] Speaker 00:
There's a lot going on in this case.

[00:10:06] Speaker 00:
You've got three different patents, and there's a mixture of method patents and apparatus patents.

[00:10:12] Speaker 00:
So is my understanding correct that the reasonable royalty applies to the method claims and the lost profits apply to the apparatus claim?

[00:10:22] Speaker 03:
Yes, Your Honor.

[00:10:24] Speaker 03:
There was a finding that the method claims were not infringed by the customers.

[00:10:28] Speaker 03:
Okay.

[00:10:29] Speaker 03:
And remember, it only applies to one particular customer, Hershey.

[00:10:34] Speaker 00:
Wait a minute.

[00:10:35] Speaker 00:
On the method claims, speaking of the method claims, so you've got four method claims, right?

[00:10:39] Speaker 00:
Three in the 658 and one in the 662?

[00:10:42] Speaker 00:
So I got that right?

[00:10:44] Speaker 00:
Yes, Your Honor.

[00:10:45] Speaker 00:
All right.

[00:10:45] Speaker 00:
So let me turn you to the splash shield issue.

[00:10:50] Speaker 00:
It's a little odd, right?

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My understanding is both parties sort of agreed and accepted that the lid, the splash shield was a lid.

[00:10:58] Speaker 00:
But somehow that got translated during the trial to something arguably beyond that.

[00:11:06] Speaker 00:
Were there objections made at trial?

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Were there arguments by you?

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Were there arguments on your side with respect to the claim construction and how this exceeds the claim construction the jury's been given?

[00:11:18] Speaker 00:
How did that go?

[00:11:20] Speaker 03:
Your Honor, I think that's well established in the briefing that we repeatedly said that we asked questions of Dr. Maynes whether or not he ever tested the shield by itself and he answered that he always considered the entire splash shield assembly, which included the weight and the guide rod, to never consider the shield by itself.

[00:11:39] Speaker 03:
And we provide a counter expert testimony saying that wasn't proper, that the

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that the actual claim construction was a shield by itself.

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So the record in our briefing is replete with examples.

[00:11:52] Speaker 00:
Anything with the jury instructions implicated at all?

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Did you request a jury instruction to that effect?

[00:12:02] Speaker 03:
Well, the claim constructions were part of the jury binder.

[00:12:08] Speaker 03:
And it did say that the shield was just a lid.

[00:12:11] Speaker 00:
Okay, so let me just ask you the bottom line.

[00:12:13] Speaker 00:
Hypothetically, if one were to agree with you on those three claims of the 658, what does that do to the reasonable royalty damages award?

[00:12:25] Speaker 00:
What does that do to that calculation?

[00:12:29] Speaker 03:
Your Honor, it actually wouldn't change the calculation at this point because there's the 150 patent.

[00:12:36] Speaker 03:
that there's already been a finding.

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So at this point it wouldn't change the reasonable royalty calculation because there was a single royalty for all the patents.

[00:12:45] Speaker 00:
If I could just clarify, but I thought the 150 were apparatus claims that were covered in the lost profit, not in the reasonable royalty.

[00:12:55] Speaker 00:
Am I wrong about that, right?

[00:13:00] Speaker 03:
Well, Your Honor, this part of the 150 patent, it's for our use of the machines.

[00:13:06] Speaker 03:
And then it would also cover non-Hershey machines.

[00:13:08] Speaker 03:
So for example, where there weren't.

[00:13:13] Speaker 00:
Even if we were to agree with you on the splash shield claim construction issue with regard to 610 and 11 of the 658, that wouldn't get you anywhere in terms of a decrease in the reasonable royalty damages.

[00:13:27] Speaker 00:
Is that what you told me?

[00:13:29] Speaker 03:
Right, as long as the other ones weren't changed as well, the 150 pack, because there are some non-Hershey sales that would be covered by that.

[00:13:39] Speaker 00:
Okay.

[00:13:39] Speaker 03:
Thank you.

[00:13:40] Speaker 03:
Mr. Foster, is that also true on the lost profits award?

[00:13:46] Speaker 03:
Well, that's not completely true of the lost profits award.

[00:13:51] Speaker 03:
So if the apparatus claims were reversed here, if the apparatus claims were reversed,

[00:13:56] Speaker 03:
there would be no basis for the lost profits.

[00:13:59] Speaker 02:
So right now... That would be every single apparatus claim, right?

[00:14:04] Speaker 02:
If one of the apparatus claim findings of liability is upheld, then the lost profits award stands.

[00:14:12] Speaker 02:
Is that right?

[00:14:13] Speaker 03:
Yes, Your Honor, we would agree with that.

[00:14:16] Speaker 03:
Okay.

[00:14:16] Speaker 03:
I mean, again, we can test it based on sufficient evidence, but in terms of like your hypothetical, that's correct.

[00:14:21] Speaker 02:
Okay, so I guess that's why you need to run the table, I guess, on all of these infringement findings for all these different claims.

[00:14:30] Speaker 02:
Yes, Your Honor.

[00:14:31] Speaker 02:
Okay.

[00:14:33] Speaker 04:
Okay, any more questions for Mr. Foster at this stage?

[00:14:37] Speaker 00:
No, thank you.

[00:14:38] Speaker 00:
No, thank you.

[00:14:39] Speaker 04:
Okay, good.

[00:14:40] Speaker 04:
Mr. Foster, we'll save you rebuttal time, and we'll hear from Mr. Smith.

[00:14:44] Speaker 01:
Good morning, Your Honor, and may it please the Court, Roger Smith on behalf of the Appellees and Cross Appellants for Real Foods and Rich Products.

[00:14:52] Speaker 01:
I'll start with the Sato reference that the court had many questions about.

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I just want to be clear upfront, we are not maintaining that the standard for 315E IPR estoppel dictates the outcome here.

[00:15:07] Speaker 01:
We in the district court argued that the correct standard was the Jazz Pharmaceutical Standard, and at oral argument, the appellants conceded that that was the correct standard.

[00:15:19] Speaker 01:
We are also not arguing that in a different case, under different facts and circumstances, that a Japanese unexamined utility model application could never be prior art.

[00:15:30] Speaker 01:
Our argument here, as the court has instructed, under a case-by-case analysis of the facts and circumstances, is that the appellants who bore the burden of proof here, and we could discuss what the proper burden was, but our position is under any burden,

[00:15:46] Speaker 01:
They failed to meet that burden to show, to make a satisfactory showing, as required by Jazz, that this SATA reference... What in your view would be a sufficient showing, recognizing that the two standards are not identical?

[00:16:02] Speaker 00:
Your Honor, I think... I mean, your experts seem to have pretty strong language.

[00:16:08] Speaker 00:
Was that the issue that you rest on, or what else is there?

[00:16:12] Speaker 01:
Your honor, I think the categorical nature, which all three of the members of the panel touched on, the categorical nature of the declarations is sweeping in its scope.

[00:16:23] Speaker 01:
And I did want to correct one statement that Mr. Foster made.

[00:16:27] Speaker 01:
The reality is both Ms.

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Nielsen and Mr. DiMarco in their declarations said even with the reference number of the Sato reference, they could not find it.

[00:16:37] Speaker 01:
And there is no suggestion in the declarations that

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the searches were limited to English language.

[00:16:43] Speaker 01:
In fact, Ms.

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Nielsen suggests she went beyond English language searches.

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And Your Honor has in the record the rest of the declarations in terms of what databases they used and the millions of references they looked for.

[00:16:55] Speaker 01:
And it was the categorical nature that this reference could not be found, even with the reference number.

[00:17:01] Speaker 01:
But maybe perhaps more directly to answer your question, Judge Prost, there's also an absence of evidence.

[00:17:07] Speaker 01:
It is certainly possible that a searcher

[00:17:10] Speaker 01:
2015 or 2016 might not have been able to find this, but the proponent of this printed publication could have come in with evidence that suggested, notwithstanding the fact that it couldn't be found, that it was in fact publicly disseminated back in 1992 or 2001 or whatever timeframe they're looking at.

[00:17:28] Speaker 01:
But there's a complete absence of any such evidence here.

[00:17:31] Speaker 01:
There's no declaration from anyone related to the Japanese Patent Office procedures, how these things are classified or published.

[00:17:39] Speaker 01:
There's no declaration from a Japanese attorney or even a declaration from the prior art searcher here who did eventually find Sato.

[00:17:48] Speaker 01:
There is just no way to reconcile the categorical nature of the statements made in the Nielsen and DiMarco declarations.

[00:17:56] Speaker 02:
If Hamilton had presented all of that evidence, would that have been enough to overcome judicial estoppel?

[00:18:01] Speaker 01:
I apologize, Judge Shen.

[00:18:02] Speaker 01:
I didn't catch the first part of your question.

[00:18:04] Speaker 02:
OK.

[00:18:04] Speaker 02:
You were telling a long story about what

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the other side could have done to establish the accessibility of SATO.

[00:18:14] Speaker 02:
And my question to you is, if they had gone to all those lengths to oppose your motion and limine, would that have been enough to overcome judicial estoppel or to refute judicial estoppel?

[00:18:29] Speaker 01:
your honor it may have been of course this is in the realm of hypotheticals because we don't know what those declarations would have said but but and to your point earlier in questioning mr foster there may be daylight between the two standards such that declarations submitted in in opposing a 315 estoppel motion might not

[00:18:51] Speaker 01:
for or gain the outcome of a publicly accessible printed publication inquiry.

[00:18:57] Speaker 01:
There could be daylight and I could imagine you could bring forward evidence that would allow here the appellants to have succeeded on both motions, but given the nature of the evidence they brought forward in

[00:19:11] Speaker 01:
categorically opposing the IPR estoppel and providing no additional evidence to explain or justify a conclusion by the district court that public dissemination actually occurred of this purported reference, I think it's the combination of those things without necessarily having to get to the question of judicial estoppel and attempting to harmonize the different standards under 102 and under 315.

[00:19:42] Speaker 01:
Unless the court has other questions for me on Sato, I'm happy to move on to the questions Judge Prost asked about the splash shield.

[00:19:52] Speaker 04:
Yes, please do.

[00:19:54] Speaker 01:
Okay.

[00:19:55] Speaker 01:
Your Honor, Your Honor, the splash shield construction was indeed an agreed upon construction.

[00:20:03] Speaker 01:
It was simply a lid.

[00:20:06] Speaker 00:
Yes, I'm sorry.

[00:20:07] Speaker 00:
This is Judge Prost.

[00:20:08] Speaker 00:
I just wanted you to be clear that the greed upon construction was just that it was a lid and not the additional features of this apparatus, right?

[00:20:18] Speaker 01:
Your Honor, the literal construction was lid for cup opening.

[00:20:22] Speaker 01:
There was no particular shape specified for that lid.

[00:20:26] Speaker 01:
There was no negative limitations implied.

[00:20:29] Speaker 01:
It was simply the lid.

[00:20:31] Speaker 01:
It's the aspect of the machine that covers the cup.

[00:20:35] Speaker 01:
Whether that's just a plastic lid or a plastic lid with other things attached to it.

[00:20:42] Speaker 01:
I don't know that attaching things to a piece of plastic necessarily means it's no longer the lid.

[00:20:49] Speaker 01:
And I think that's the primary issue that

[00:20:52] Speaker 01:
Judge Connolly wrestled with, you asked.

[00:20:54] Speaker 00:
Wait, but didn't everybody consider, wasn't the discussion of the lid with the bells and whistles that this is the splash shield, that the splash shield includes all these other things beyond just the lid?

[00:21:11] Speaker 00:
Not like, OK, you can add other things and you can still be infringing on a, this was different, right?

[00:21:17] Speaker 00:
You understand my question?

[00:21:19] Speaker 01:
I think I do, and if I don't, please let me know, Your Honor.

[00:21:23] Speaker 01:
What I would say is, back to your earlier question about whether this was preserved, there was a summary judgment motion made by the appellants here to argue that the lid, the piece of plastic alone, could not satisfy this limitation.

[00:21:39] Speaker 01:
We opposed that motion and ultimately prevailed at the summary judgment stage.

[00:21:43] Speaker 01:
By arguing that the splash shield assembly, which was it was a shorthand way of saying the lid in it, you know, not just the piece of plastic, but also the guide rods in the weight that that satisfies the splash shield limitation.

[00:21:59] Speaker 01:
And Judge Connolly denied that motion for summary judgment and allowed the case to proceed to trial for the jury to decide whether the combination of the plastic, the guide rods, and the weight satisfy the claim construction provided by the court.

[00:22:19] Speaker 02:
So this is Judge Chen, just so I understand.

[00:22:21] Speaker 02:
The pitch you made to the jury as the patent owner was that

[00:22:28] Speaker 02:
The entire contraption, the plastic cover, the guide bars, and the weight sitting on top of the guide bars, that whole thing was a lid?

[00:22:41] Speaker 02:
Because obviously the claim says shield, but shield has been translated through claim construction to be lid.

[00:22:48] Speaker 02:
And so were you saying the whole thing was a lid?

[00:22:54] Speaker 02:
Or were you saying to the jury,

[00:22:56] Speaker 02:
Well, just the plastic covering itself is the lid.

[00:23:01] Speaker 01:
Your Honor, the expert testimony from our expert was that he considered all the contraption, as I think you said, all three pieces were the lid because they worked together.

[00:23:13] Speaker 01:
They had the purpose of

[00:23:17] Speaker 01:
of a lid, of covering the opening and also providing weight so that the lid did not move away from the copper vessel itself.

[00:23:25] Speaker 01:
So his testimony and trial, our testimony presented through our expert, was that the assembly, the three pieces together

[00:23:34] Speaker 01:
functioned as a unit and should be considered the class.

[00:23:38] Speaker 00:
Well, Mr. Smith, you were answering the question.

[00:23:40] Speaker 00:
You started to, it appeared to me, to make an argument about whether there was adequate preservation here.

[00:23:47] Speaker 00:
And I never, I didn't understand what you were saying to deal with that question.

[00:23:53] Speaker 00:
I mean, just because the district court made that statement in denying summary judgment of non-infringement, that wasn't an appealable order.

[00:24:02] Speaker 00:
What were they supposed to do with that at that time?

[00:24:06] Speaker 00:
They couldn't appeal it, right?

[00:24:07] Speaker 01:
That's right, Your Honor.

[00:24:09] Speaker 01:
I didn't mean to suggest waiver.

[00:24:11] Speaker 01:
I was meaning to suggest by way of background that the question was presented as a factual matter for the jury to decide.

[00:24:21] Speaker 01:
whether or not the splash shield assembly as identified by the patentee here as the infringing aspect of the invention.

[00:24:30] Speaker 00:
But why is that?

[00:24:31] Speaker 00:
I mean I'm having a hard time intellectually getting my brain around why if the definition that everyone's agreed to, now you put the words

[00:24:41] Speaker 00:
literal, literal on it.

[00:24:43] Speaker 00:
But if the literal definition is just the lid, I'm having a hard time why it's fact-finding rather than a claim construction question to ask the jury to decide whether this splash is not just a lid, but these other things as well.

[00:25:03] Speaker 00:
You understand my issue?

[00:25:04] Speaker 00:
You and obviously the district court characterized this second question as being a fact question for the jury, and I'm having a hard time seeing why that is not a matter of claim construction.

[00:25:19] Speaker 01:
Your Honor, I think the short answer is because it wasn't presented to the district judge as a matter of claim construction.

[00:25:26] Speaker 01:
there was, and it would have, I think.

[00:25:27] Speaker 00:
When should it have been presented if the claim, they got it, it wasn't like there was no claim construction was plain and ordinary meaning.

[00:25:35] Speaker 00:
The agreed on claim construction was a lid, so why would anything more have to have been presented if the claim construction was over and done with and it was, as you say, literal, literally correct that it was only the lid?

[00:25:52] Speaker 01:
Your Honor, I believe that the appellant

[00:25:55] Speaker 01:
When they understood that the parties had what is, Your Honor, is indicating may very well be more properly viewed as a claim construction dispute, that that's when they should have asked for a further construction of that limitation so that it wasn't left to the jury to decide, assuming that was an improper procedural move by the district court.

[00:26:18] Speaker 01:
And I'm unaware of any request by the appellants here

[00:26:22] Speaker 01:
for further claim construction to further specify what was a LID.

[00:26:27] Speaker 00:
They had a claim construction.

[00:26:29] Speaker 00:
Why wasn't it up to you to request a further claim construction that included what you presented to the jury, which is all these DUDADs are also included in the definition of slash IE LID?

[00:26:46] Speaker 00:
What would they have had to do?

[00:26:49] Speaker 00:
What were they supposed to do?

[00:26:50] Speaker 00:
Say, wait a minute, we have a claim construction that we like, but we want to change it?

[00:26:57] Speaker 01:
I think both parties, Your Honor, were comfortable with the claim construction and that's why it would move forward without any further construction.

[00:27:07] Speaker 01:
I take your point that both sides could have asked for further construction if they thought it was necessary, but neither side did here.

[00:27:16] Speaker 01:
Unless Your Honors have any further questions for me, I'll reserve the balance of my time.

[00:27:22] Speaker 04:
Now, did you want to say anything on your cross-appeal?

[00:27:26] Speaker 01:
Your Honor, I'm happy to rest on our papers on that, and as a result, forfeit my rebuttal time.

[00:27:33] Speaker 04:
OK.

[00:27:34] Speaker 04:
Is that all right with the panel?

[00:27:36] Speaker 01:
Yes.

[00:27:37] Speaker 03:
Yes.

[00:27:38] Speaker 04:
All right.

[00:27:39] Speaker 04:
Good.

[00:27:39] Speaker 04:
Thank you.

[00:27:40] Speaker 04:
Then we'll hear from Mr. Foster.

[00:27:43] Speaker 03:
Thank you, Your Honor.

[00:27:44] Speaker 03:
Just a couple of corrections.

[00:27:46] Speaker 03:
The declarations didn't say they couldn't find the reference once they were given the number.

[00:27:50] Speaker 03:
It says they checked for Sado and they found it.

[00:27:53] Speaker 03:
Paragraph 17 of the DiMarco Declaration says they found it in the Questol Orbit database.

[00:27:58] Speaker 03:
Paragraph 25 of the Nielsen Declaration says they found it in EPADOC.

[00:28:03] Speaker 03:
Again, they couldn't find it with a translation.

[00:28:05] Speaker 03:
These aren't so strong.

[00:28:07] Speaker 03:
They said no one could find it.

[00:28:08] Speaker 03:
These declarations are literally just, they couldn't find it based on their searches using

[00:28:13] Speaker 03:
English language key searching.

[00:28:15] Speaker 03:
And again, there's a lot of case law saying just because a reference can't be found with typical search tools doesn't mean, like the Freeman case that we cited in our brief doesn't mean it's not prior art.

[00:28:24] Speaker 03:
If it's just like a single thesis in a library somewhere, it can still be searchable.

[00:28:31] Speaker 03:
I mean, the whole Jazz case was papers that were presented at a conference under an events tab.

[00:28:36] Speaker 03:
They weren't indexed or searchable whatsoever.

[00:28:39] Speaker 03:
So the court, by equating things, if you succeed on the IPR stop-all standard, you automatically lose on publicly assessability was wrong, because the evidence of the reference itself, which they never contested the accuracy at the lower court, shows that the date of publication, who was published by, and where it was published.

[00:28:57] Speaker 03:
Your Honor, I think I'm out of time.

[00:28:58] Speaker 03:
If you have any further questions.

[00:29:00] Speaker 04:
Any more questions for Mr. Foster?

[00:29:03] Speaker 03:
No.

[00:29:04] Speaker 04:
All right.

[00:29:04] Speaker 04:
No, thank you.

[00:29:05] Speaker 04:
Okay, well now thanks to both counsels.

[00:29:08] Speaker 04:
The case is taken under submission.