[00:00:00] Speaker 00:
for argument is 20-1742 Green versus Morovia Nursery Company.

[00:00:06] Speaker 00:
Mr. Reich, whenever you're ready.

[00:00:09] Speaker 03:
Thank you, Your Honor.

[00:00:10] Speaker 03:
May it please the court, this is Lance Reich.

[00:00:11] Speaker 03:
I'm counsel for the Greens.

[00:00:13] Speaker 03:
And this case involves a breach of contract.

[00:00:17] Speaker 03:
And the contract was for the sale and propagation of mandevilla plants.

[00:00:22] Speaker 03:
Mandevillas are decorative vines.

[00:00:24] Speaker 03:
They're mostly temperate to the south.

[00:00:27] Speaker 03:
And the Greens were propagating mandevilla in their nursery in Florida for many years.

[00:00:35] Speaker 03:
But the key time here is 1996.

[00:00:37] Speaker 03:
So mandevillas have been propagated for 100 years.

[00:00:41] Speaker 03:
And certain varieties of them have been propagated for a very long time.

[00:00:47] Speaker 03:
One of them is called Alice DuPont.

[00:00:49] Speaker 03:
And two factual items that might help the court understand what's going on here, if it's not familiar with the term,

[00:00:55] Speaker 03:
All of these plants, the mandevillas we'll be talking about, have the same scientific name.

[00:00:59] Speaker 03:
They all start with mandevilla cross ambivillus.

[00:01:02] Speaker 03:
And then they have the name of the inventor or the discoverer of the plant after it.

[00:01:07] Speaker 03:
So when you hear redemarie green, monite, monarie, those are actually part of the scientific name plant of the variety and recited in the patents that underlie all these plants.

[00:01:17] Speaker 03:
The second key fact is that these plants are asexually propagated.

[00:01:21] Speaker 03:
That is done because they have to maintain the traits

[00:01:24] Speaker 03:
that we sell the plants for that are desirable through different species, through different iterations of the species in sales and nursery.

[00:01:33] Speaker 03:
So this is not about textual propagation.

[00:01:36] Speaker 03:
And so the key trait that the Greens discovered in 1996 was in Alice du Pont, which had been propagated for the better part of 60 to 70 years, that traditional mandevilla had a single corolla of petals.

[00:01:52] Speaker 03:
A corolla of petals is basically like a front bed.

[00:01:55] Speaker 03:
Think of it like that, where one layer of petals goes around.

[00:01:59] Speaker 03:
And it's very decorative, very big flowers, very pretty.

[00:02:02] Speaker 03:
But they discovered and isolated, starting in 1996, a double flower, a true double flower of a corolla, which has basically a flower within a flower, the classic double flower phenotype.

[00:02:17] Speaker 03:
And they isolated it, stabilized the mutation branch.

[00:02:20] Speaker 03:
They named it Rita Marie Green.

[00:02:22] Speaker 03:
They went to Monrovia, starting in 1997, which Monrovia is one of the biggest nurseries in the world, based in California, to see if they're interested in propagating and selling the new variety under license.

[00:02:35] Speaker 03:
Monrovia was.

[00:02:36] Speaker 03:
So they entered an agreement signed in 1998 for Monrovia to sell and propagate the Rita Marie green variety.

[00:02:47] Speaker 03:
At the time, Monrovia had many, many plants, many mandevilla,

[00:02:51] Speaker 03:
They also had one called monite.

[00:02:54] Speaker 03:
Monite was another type of mandevilla that sort of had a visual double flower, but not a true double flower corolla.

[00:03:03] Speaker 03:
So as part of the licensing agreements, Monrovia and the Greens filed patent applications for the Rita Marie Green variety.

[00:03:15] Speaker 03:
They ultimately issued a utility patent and a plant patent for Rita Marie Green.

[00:03:20] Speaker 03:
Once that happens, and unbeknownst to the dreams, the Monrovia then allegedly finds and propagates its own species of a plant having a double flowering, double corolla mandevilla called Monrae.

[00:03:37] Speaker 03:
They file their application at the pet.

[00:03:40] Speaker 01:
This is just trying to connect.

[00:03:41] Speaker 01:
Can I just ask a, I guess it's kind of a record question.

[00:03:47] Speaker 01:
Monrovia,

[00:03:49] Speaker 01:
wrote and prosecuted the green patent applications, is that right?

[00:03:55] Speaker 03:
Yes, they paid for and prosecuted on behalf of the greens.

[00:03:58] Speaker 03:
It was part of the licensing agreement.

[00:04:01] Speaker 01:
Okay, so the Reed and Marie Green plant patent, the 787, this is at A57, describes

[00:04:10] Speaker 01:
seems to describe the Monite as well as the Rita Marie Green variety as having double flower structure on column two, lines seven through nine.

[00:04:24] Speaker 01:
This double flower structure is unique among mandevilla plants and is a characteristic of all Rita Marie Green variety plants, including the variety Monite.

[00:04:35] Speaker 01:
So why, which I gather, Monrovia was the assignee and wrote that, why doesn't that confirm what Judge Klausner determined and the pictures seem to show that the Monite is, like the Rita Marie Green, also a double flower structure?

[00:04:54] Speaker 03:
Well, so Your Honor, actually it implies the opposite.

[00:04:58] Speaker 03:
So Monite was known by Monrovia at the time to sign the licensing agreement.

[00:05:03] Speaker 03:
with the greens.

[00:05:04] Speaker 03:
It's actually reflected in the licensing agreement with the greens, and it doesn't apply to the licensed plants, as it were.

[00:05:14] Speaker 03:
And the problem is that this is one of two major errors the district court made here.

[00:05:20] Speaker 03:
The first one is the, it says double flowers, but if you wanted to drill into it technically, which the expert in the case does, what Monite has is a single spiral in Corolla,

[00:05:33] Speaker 03:
that goes around.

[00:05:34] Speaker 03:
And so it's a visual double flower, but not a true double corolla double flower.

[00:05:39] Speaker 03:
And I'm using very basic terms here.

[00:05:41] Speaker 03:
But there's very specific technical terms that Dr. Legal uses of the plaintiff's expert to describe the difference.

[00:05:49] Speaker 03:
And so when you realize the key trait.

[00:05:51] Speaker 01:
This is the expert, your expert.

[00:05:55] Speaker 01:
And where does he describe the characteristics of the monite?

[00:06:00] Speaker 01:
So he goes.

[00:06:03] Speaker 03:
in his, let me pull up his opinion.

[00:06:06] Speaker 03:
Basically, he... Can you give me Joint Appendix page references, please?

[00:06:10] Speaker 03:
Sure, sure.

[00:06:11] Speaker 03:
So, he talks about, let's see, he uses very technical terms, mind you, but he talks about what's called an AG homolog mutation, which that is at appendix, let's see.

[00:06:33] Speaker 03:
This is an expert report from 265 to 268, and he specifically talks about the homolog and asymmetrical loads and whatnot at

[00:07:02] Speaker 01:
Well, I'm looking at 265 under the photographs, the four photographs, in which he talks about the double flower, seemingly in reference to AG homologs, produces the classical double flower phenotype.

[00:07:19] Speaker 01:
And then he seems to refer to the green, the monterey, and the monite.

[00:07:26] Speaker 03:
So he's talking about the hybrid variety.

[00:07:29] Speaker 03:
So the homolog being casual, he also talks about

[00:07:32] Speaker 03:
the true double flower, what he refers to as a classical double flower.

[00:07:38] Speaker 03:
And so he does say this in a technical manner, and again, I'm oversimplifying it.

[00:07:46] Speaker 03:
But the key is that the true double flower is the trait for which the greens sold the

[00:07:56] Speaker 03:
Mr. Reich, this is Judge Shenn.

[00:08:00] Speaker 02:
Where does your expert say the term true double flower?

[00:08:06] Speaker 03:
I'm looking for it right now, Your Honor.

[00:08:09] Speaker 02:
I don't remember ever seeing that.

[00:08:13] Speaker 02:
What I do recall is that 8266 hit the very top, or about maybe eight lines down or so.

[00:08:24] Speaker 02:
Less than that, from the discussion of double flowers in other species, it is obvious that mutations in an AG homolog are the most likely causes of the double flowers reported for descendants of the mandevilla hybrid variety, Alice du Pont, comma, the sports Rita, Marie Green, Mon-Ray, and Monite, with a small chance that other genes are responsible.

[00:08:47] Speaker 02:
So, to me, you know, I'm no botanist,

[00:08:52] Speaker 02:
it looks like he's clearly lumping in Rita Marie Green, Mon Ray, and Ma Knight as all being, quote unquote, double flowers.

[00:09:03] Speaker 02:
I see no distinction between Ma Knight on the one hand being one thing and then Rita Marie Green and Mon Ray being a separate thing that are, quote unquote, true double flowers and Ma Knight being merely

[00:09:21] Speaker 02:
a non-double flower.

[00:09:24] Speaker 02:
I don't see that.

[00:09:25] Speaker 03:
So he talks about the inactivation.

[00:09:28] Speaker 03:
This is on 265 where you're going to reference it.

[00:09:30] Speaker 03:
He talks about the inactivation of the AG homologs and produces the classic double flower phenotype.

[00:09:35] Speaker 03:
And again, one of the problems is the first time... Right.

[00:09:39] Speaker 02:
And then the sentence goes on.

[00:09:41] Speaker 02:
And then again, just as on the quote from A266, I just said there he again

[00:09:50] Speaker 02:
sweeps in Rita Marie Green, Mon-Ray, and Mon-Night all together.

[00:09:58] Speaker 03:
Well, he does that, Your Honor, because he's talking about... It's a technical report.

[00:10:05] Speaker 02:
He does have his own technical report where he bumps in all three flowers in the same category as being a classical double flower phenotype.

[00:10:14] Speaker 03:
So... May I finish, Your Honor?

[00:10:18] Speaker 03:
Yes, please respond.

[00:10:20] Speaker 03:
So I would also point, Your Honor, to the differences in the patents described on the traits of the Monite, Rita Marie Greene, and Monterey of what the physical differences are between them.

[00:10:34] Speaker 03:
And the fact that Dr. Weigel didn't quite put this in the terms the court was describing, they're different things.

[00:10:41] Speaker 03:
And Dr. Weigel is unrebutted as an expert.

[00:10:44] Speaker 03:
Thank you.

[00:10:51] Speaker 00:
Okay, Mr. Dillard.

[00:10:54] Speaker 00:
Good morning, Your Honors.

[00:10:56] Speaker 00:
David Dillard for Defendant Appoli, Monorovia Nursery Company.

[00:11:02] Speaker 00:
If I could just follow up on the discussion you were having with Mr. Reich.

[00:11:09] Speaker 00:
The monite is described in the, well, its plant patent, which is beginning

[00:11:20] Speaker 00:
appendix 195, and specifically 196 under flowers, that the structure is funnel-shaped as outer five-parter, excuse me, parted corolla limbs and five-parted petaloids, which is the same structure that the Rita Marie green flower has.

[00:11:48] Speaker 01:
Can I, this is just turned up, can I ask you on the plant patent for the Monrae 290, this is on page A64 and I think also on page 202, I think it appears twice in the Joint Appendix, but at the bottom of column one, and this is again, this is Monrovia's patent, it refers to the Monite as having single flowers

[00:12:15] Speaker 01:
with five petals.

[00:12:17] Speaker 01:
What do I make of that?

[00:12:24] Speaker 01:
Anything?

[00:12:25] Speaker 01:
I don't think green makes anything of it.

[00:12:27] Speaker 01:
Maybe it just means it has two of those, each one with five flowers, with five petals.

[00:12:32] Speaker 01:
But there it uses the language single flowers to refer to the monite or monite.

[00:12:42] Speaker 00:
I found the site.

[00:12:45] Speaker 00:
It does say that.

[00:12:48] Speaker 00:
But I think if it's, for example, on our responsive brief on page two, we've got the three flowers in question, the Rita Marie Green, Monite, and Monterey, all shown.

[00:13:06] Speaker 00:
And you can see for both the Rita Marie Green and the Monite, there is this

[00:13:15] Speaker 00:
Flower within a flower created by petaloids within the throat of the larger outer ring of petals?

[00:13:31] Speaker 01:
I guess the reason I'm trying to figure this out is in a way this is kind of a single issue case.

[00:13:37] Speaker 01:
That is, the expert for the other side did a study in which he said,

[00:13:44] Speaker 01:
The chances are near zero that this Monterey pattern or structure came from the Rita Marie Green, I'm sorry, came from the Alice DuPont

[00:14:07] Speaker 01:
as opposed to the Rita Marie Green.

[00:14:10] Speaker 01:
And Judge Kozner said that simply doesn't ask the right question because there's the allegation from the defendant here is that it actually came from a third thing, namely the Monite, which is never discussed, or not never discussed, it is mentioned, but is not the subject of a probability

[00:14:33] Speaker 01:
comparison in Dr. Weigel.

[00:14:36] Speaker 01:
And that objection has force only if one starts with the premise that the monite is, I don't know, either has the double flower or has something like it as opposed to, you know, being more likely Alice DuPont without it.

[00:15:02] Speaker 00:
The plant patent for the monite, which is the... Mr. Dillard, could you speak up a little?

[00:15:15] Speaker 00:
I'm sorry.

[00:15:15] Speaker 00:
The plant patent for the monite is the inventor was Sperling.

[00:15:20] Speaker 00:
It's PP12, 123, appendix 195.

[00:15:29] Speaker 00:
indicates, just under the summary of the invention, that the monite was selected for a showy cluster of pink petaloids within the flower throat, appearing as a pink flower within a larger pale pink flower.

[00:15:45] Speaker 01:
So, I mean, this was the... Well, as I say, the greens do not make anything of this reference in the Monterey 290 plant patent.

[00:16:02] Speaker 01:
But do I understand the basic logic of the ground of Judge Klosner that there's only one piece of evidence on the Green side and that evidence doesn't count for anything because it doesn't ask the right question?

[00:16:19] Speaker 01:
What is the comparative chance of the Monterey coming from the Rita Marie Green versus the Monite?

[00:16:29] Speaker 00:
Right, Dr. Weigel does not address the part of the Monterey coming from the Rita Marie Greene or the Monite.

[00:16:46] Speaker 00:
In fact, in his declaration, he doesn't even mention the Monite.

[00:16:53] Speaker 01:
No, but he does in the expert report, and he does it in a way that suggests if two is a double flower.

[00:16:58] Speaker 01:
which does add to the mystery of why he doesn't do the comparative probability analysis.

[00:17:04] Speaker 00:
It does.

[00:17:05] Speaker 00:
And then he goes through and explains why he can't do certain things.

[00:17:12] Speaker 00:
And so he looked at the likelihood of an independent occurrence of a double flower mutation in the Alice DuPont.

[00:17:23] Speaker 00:
That's the parent of the Rita Marie Green

[00:17:28] Speaker 00:
and the parent of the monite.

[00:17:31] Speaker 00:
And from the evidence that we've provided, the photographic evidence, the sworn statements, eyewitnesses that found the Monterey flower on a branch of a monite, the Weigel,

[00:17:58] Speaker 00:
just didn't address the Monite at all.

[00:18:03] Speaker 00:
Or it didn't address the relative possibilities of the Monray coming from the Monite versus the Rita Marie Green.

[00:18:16] Speaker 00:
And the Monray is quite different in the looks.

[00:18:19] Speaker 00:
It has 20 petals instead of the 10 that the Rita Marie Green has and the Monite has.

[00:18:29] Speaker 00:
The one commonality would be with monite because the mon-ray is a light pink like the monite, whereas the urinary green is reddish purple or dark pink.

[00:18:50] Speaker 00:
The other thing that Dr. Weigel didn't address was the

[00:18:59] Speaker 00:
the differences between the Monterey and both the Monite and Rita Marie Greene with that much heavily peddled and ruffle look.

[00:19:19] Speaker 00:
It looked considerably different than either of the Monite or Rita Marie Greene.

[00:19:29] Speaker 00:
It doesn't have a flower within a flower.

[00:19:36] Speaker 00:
So, you know, there was really nothing to challenge any of the uncontroverted facts that Monerovia laid out in its summary judgment motion.

[00:19:51] Speaker 00:
And, you know, without a challenge,

[00:20:00] Speaker 00:
they should be considered to be true and we have the backup declarations and actual photographs that establish it.

[00:20:24] Speaker 00:
Is there any other questions that I can respond to on that?

[00:20:31] Speaker 00:
Anything further, Mr. Doar?

[00:20:35] Speaker 00:
Not unless the court has any questions.

[00:20:37] Speaker 00:
I think all of the other claims are pretty straightforward.

[00:20:42] Speaker 00:
And we just rely on our brief for those.

[00:20:49] Speaker 00:
OK, thank you.

[00:20:50] Speaker 00:
All right, thank you very much.

[00:20:52] Speaker 03:
Thank you.

[00:20:53] Speaker 03:
Mr. Rice?

[00:20:55] Speaker 03:
Thank you, Your Honor.

[00:20:56] Speaker 03:
So first and foremost, the fundamental error

[00:20:59] Speaker 03:
of saying you can somehow know what the mutation rate of MONIT is exactly what the entire report talked about.

[00:21:07] Speaker 03:
It talks about the fact that all we know for sure is one mutation to a double-curl, a double-following mandevilla, Alice DuPont, occurred in about 60, 80 years.

[00:21:18] Speaker 03:
And we do know, and this report talks about this at length, what the general mutation rate to gain a function

[00:21:26] Speaker 03:
of a double, true double corolla is.

[00:21:30] Speaker 03:
And I think it's without dispute that Monterey is different enough with this, whatever it is, if we're going to argue whether it's a single spiring corolla or a double flowering double assorted corolla, that Monterey has that same structure that Rita Marie Greene does.

[00:21:51] Speaker 03:
And only knowing that information, that's why

[00:21:55] Speaker 03:
Dr. Weigel gives a range that the chances of that specific mutation showing up in the manner that is said in patents that the way it's testified to is between one in 175 million, one in 113 billion, which is mathematically almost certain that those are related plants that you have the same or genetically related.

[00:22:16] Speaker 03:
And his testimony is unrebutted.

[00:22:18] Speaker 03:
The defendants have no expert witnesses.

[00:22:20] Speaker 03:
And the fact that the court's not following Mendelian genetics on how this thing is expressed and what you can say.

[00:22:26] Speaker 02:
Mr. Reich, again, you know, it appears that all of Dr. Weigel's statements are premised on an assumption when he makes the statistical analysis that the monite is not a double flower, but that

[00:22:50] Speaker 02:
assumption he can't hold that because he even acknowledges and admits that it's a double flower.

[00:22:58] Speaker 02:
So I don't know what to do with the expert report, Pat.

[00:23:02] Speaker 03:
Well, Your Honor, again, he's using his own words.

[00:23:04] Speaker 03:
So if you go to where you're citing earlier about 265 and 266, what he calls the classical double

[00:23:15] Speaker 03:
phenotype, he says classical double flower with multiple whorls, which I put in corollas, of interior petals instead of a re-initiation of an entire flower.

[00:23:25] Speaker 03:
Re-initiation of an entire flower is that single corolla coming around the swirl.

[00:23:30] Speaker 03:
And again, if you were to lump, okay, monite is the same as Monterey, the same as this, maybe the same as Maria Marie Greene, with some distinction, without distinction,

[00:23:45] Speaker 03:
The, uh, that the patents all disagree.

[00:23:48] Speaker 03:
The patents talk about the different structures, but you know, as the court noted, the patent talks about five pedals here.

[00:23:54] Speaker 03:
And the key is, uh, you know, that no one's arguing that Monterey and Green and Murray Green don't have the same structure and that the same valuable structure for which Monterey entered a licensing agreement.

[00:24:06] Speaker 03:
And the fact, the best we can do is with the most, probably one of the most well-respected, well-known geneticists in the world saying, Hey,

[00:24:13] Speaker 03:
The best I can tell you is knowing all of this.

[00:24:16] Speaker 03:
Here's the range of likelihood that this, that trait that's in Monterey will be in this straight from, from, uh, uh, read them from, uh, uh, really agreeing from all from Alice DuPont.

[00:24:27] Speaker 03:
And that's unrebutted.

[00:24:29] Speaker 03:
So here attorney arguments and, uh, uh, some other opinions.

[00:24:33] Speaker 03:
Well, you should ask this.

[00:24:34] Speaker 03:
You should ask that if you need to know who to ask to tell you what mathematically is possible.

[00:24:40] Speaker 03:
Dr. Weigel is a person, and this has all been decided on summary judgment, with no testimony, no oral argument, no nothing.

[00:24:47] Speaker 03:
And so that's the incorrect standard.

[00:24:51] Speaker 03:
And the court should reverse that and see if Dr. Weigel, as a signer of fact, will weigh Dr. Weigel's testimony, what can and can't be known, versus the employees of Monrovia.

[00:25:01] Speaker 02:
How about as to those employees, Mr. Resendez and Mr. Wong, did you ever depose them?

[00:25:10] Speaker 03:
So, we did not, Your Honor, and because what they say could still be 100% correct in their own view.

[00:25:19] Speaker 03:
This doesn't... That plaintiff's case doesn't necessarily... What, that's a mantra that comes from the monite?

[00:25:25] Speaker 03:
That's what they're... No, that they believe it does, that they saw what they saw.

[00:25:28] Speaker 03:
You know, they said what they said.

[00:25:30] Speaker 03:
May I finish, Your Honor?

[00:25:32] Speaker 03:
Of course, yes.

[00:25:33] Speaker 03:
So, that they saw what they saw and they said what they said.

[00:25:36] Speaker 03:
It doesn't... What plaintiff is saying doesn't imply malice.

[00:25:39] Speaker 03:
The Max Planck Institute itself has 3 to 5% cross-contamination of plants at their extreme facilities.

[00:25:46] Speaker 03:
So it's entirely possible that a marina marigrine walked over to a monite or confused the plants or whatever.

[00:25:55] Speaker 03:
So it doesn't imply malice.

[00:25:57] Speaker 03:
It doesn't imply they're necessarily wrong in what they think they observed, but the mass of trade expression says otherwise.

[00:26:06] Speaker 03:
So thank you.

[00:26:07] Speaker 03:
Thank you.

[00:26:07] Speaker 03:
We thank both sides, and the case is submitted.

[00:26:10] Speaker 00:
That concludes our proceeding for this morning.

[00:26:14] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.