[00:00:00] Speaker 00:
The next argument this morning is Horizon Global Americas versus Curve Manufacturing 2020-2-03.

[00:00:06] Speaker 00:
Mr. Kupar.

[00:00:11] Speaker 03:
Thank you, Your Honor.

[00:00:12] Speaker 03:
It may have pleased the courts.

[00:00:13] Speaker 03:
The board erred in its application of the rule of reason test and the preponderance of the evidence standard.

[00:00:19] Speaker 03:
Applying the correct law, the evidence shows an invention reduced the practice before the McGrath priority date.

[00:00:26] Speaker 03:
Horizon asked the court to reverse the board's decision.

[00:00:29] Speaker 03:
per the court's to respond to the order last thursday out first address the cited case law under brown in price this court does not require further corroboration where a party seeks to prove prior inventorship through the use of physical exhibits the tri-factor conclude for itself what documents show for example in brown's physical evidence that was provided dot there were uh... notebooks from the inventor doctor reese as well as

[00:00:59] Speaker 03:
auto-radiographs and those documents did not require further cooperation to demonstrate the content of the physical evidence itself.

[00:01:07] Speaker 01:
Well, counsel, isn't it true, I'm sorry this is Judge O'Malley, I mean it's true of course that documents don't necessarily need further cooperation but that's where the documents on their face disclose a level of reliability.

[00:01:25] Speaker 01:
I mean you're talking about documents that

[00:01:28] Speaker 01:
on a variety of matters, either were undated or there are photographs that were taken during the course or in preparation for the litigation.

[00:01:37] Speaker 01:
It's not a question of the board just saying that every document needed to be corroborated by a third party.

[00:01:46] Speaker 01:
They're just saying there's nothing on the face of the documents that gives them comfort that the documents say what the inventors claim they say.

[00:01:56] Speaker 03:
Now, and thank you, Judge O'Malley, and that's where the problem is.

[00:02:00] Speaker 03:
The documents themselves, in fact, the key inventive documents here, which are the Invention Disclosure Record, which is Exhibit 1005, each and every page was dated, Your Honor, as well as each and every page having a signed authorship of who it was, namely inventor Steve Zavodny.

[00:02:18] Speaker 03:
So each and every one of those pages does identify.

[00:02:22] Speaker 00:
Was they witnessed by a non-inventor?

[00:02:26] Speaker 03:
so your honor on that point first of all that is not the law and that is not required but second of all they were witnessed by two people at that time in january twenty eight nineteen ninety four ms marsha albright she was the director of engineering as well as bruce smith two years later those two people did end up becoming named inventors long after this the this the writing or or signature in the ordinary course of business at that time in other words they were not non-inventors

[00:02:57] Speaker 03:
They were not non-inventors later, but at that time, they believed they were non-inventors when they signed the document.

[00:03:03] Speaker 03:
Just like a declaration, your honor, you take the declaration on the date it was signed, not years later.

[00:03:09] Speaker 03:
And those documents show on their face the entire invention.

[00:03:12] Speaker 03:
And that's the point.

[00:03:15] Speaker 03:
And your honor cited in that Suez-Bonte order, for example, the Lakati case.

[00:03:21] Speaker 02:
The Lakati case identified- Let's go back, this says more.

[00:03:24] Speaker 02:
Go back to Brown for a second.

[00:03:25] Speaker ?:
Okay.

[00:03:26] Speaker 02:
Didn't this court expressly hold that an inventor's own unwitnessed documentation is not sufficient?

[00:03:35] Speaker 03:
An unwitnessed documentation is not sufficient, but that's for lab notebooks.

[00:03:39] Speaker 03:
So what this court has also stated, Your Honor, and that's not where the floor is.

[00:03:44] Speaker 03:
The floor is this.

[00:03:45] Speaker 03:
that often contemporaneous documents prepared by a putative inventor serve to corroborate an inventor's testimony.

[00:03:51] Speaker 03:
And that's directly out of the epic.

[00:03:54] Speaker 02:
You have, on page 58 of your brief, you say, documentary evidence itself can establish priority.

[00:04:02] Speaker 02:
Then you cite Brown, and in the parenthetical, you say, reversing board as inventor-generated notebook itself

[00:04:13] Speaker 02:
showed admitted facts and needed no corroboration.

[00:04:17] Speaker 02:
That is the opposite of what our court actually held in that case.

[00:04:21] Speaker 03:
It was a remand, but the court stated in the Brown case that Dr. Reese's notebooks and those audio-radio graphs themselves do not need further corroboration, that you can look at those documents and identify the fact that an FT assay experiment took place.

[00:04:36] Speaker 03:
That was the remand portion of it.

[00:04:38] Speaker 02:
But it expressly says that those documents can't be used because they were witnessed by the inventor himself to corroborate, for example, the dates of invention.

[00:04:53] Speaker 03:
Yeah, but those were his personal notebooks.

[00:04:55] Speaker 03:
The next question becomes, is there something of independent nature?

[00:04:59] Speaker 03:
The independent nature is not limited by this court under its case law.

[00:05:03] Speaker 02:
But that's not what you said.

[00:05:04] Speaker 02:
On page 58, you claim the board reversed

[00:05:08] Speaker 02:
because the inventor generated notebook needed no corroboration.

[00:05:13] Speaker 02:
That's your statement.

[00:05:15] Speaker 03:
Right, it needed no further corroboration.

[00:05:17] Speaker 03:
That's right.

[00:05:17] Speaker 03:
The remand was based on the fact that the board there did not look at Dr. Reese's notebooks and audio radiographs themselves, despite the fact that Dr. Reese, the inventor, created them.

[00:05:27] Speaker 03:
That was the remand.

[00:05:28] Speaker 03:
Go back, look at the four corners of those documents, and see if the prior invention was there.

[00:05:33] Speaker 03:
It was a split decision.

[00:05:34] Speaker 03:
You're right.

[00:05:35] Speaker 03:
There's a September 20th and September 25th separate notebook date.

[00:05:39] Speaker 03:
One of them was that.

[00:05:40] Speaker 02:
Do you not see the holding?

[00:05:41] Speaker 02:
The board did not err in holding that an inventor's own unwitness documentation does not corroborate an inventor's testimony about inventive facts.

[00:05:55] Speaker 02:
That is the holding in the case.

[00:05:57] Speaker 03:
That is the holding, but Your Honor, the documents here are different than that document.

[00:06:02] Speaker 03:
That is a personal notebook from that person, right?

[00:06:06] Speaker 03:
And venture notebooks are different than corporate records, where on its face you can see, in addition, this is footnote three out of the price case.

[00:06:14] Speaker 03:
Footnote three identifies the factors you examine.

[00:06:17] Speaker 03:
It's on page 1195 of price.

[00:06:19] Speaker 03:
It identifies the factors you examine for independent corroboration.

[00:06:23] Speaker 03:
The independent corroboration requirement is not so lift.

[00:06:26] Speaker 03:
Yes?

[00:06:28] Speaker 00:
You're arguing business records.

[00:06:30] Speaker 00:
Are you trying to establish that the business records exception applies, to hearsay, applies in corroboration for patent records?

[00:06:45] Speaker 03:
What I'm saying is this, Your Honor, that the corroboration requirement requires evidence of an independent nature.

[00:06:51] Speaker 03:
The documents themselves can serve that, even if it's created by the inventor.

[00:06:57] Speaker 03:
So that's what I'm saying.

[00:06:58] Speaker 03:
So if you look at the documents, you look at the four corners of these documents, does it look like this was created at that time with the dates there?

[00:07:06] Speaker 03:
So the invention disclosure records, the CAD drawings in the summer, June, July, August of 1994,

[00:07:12] Speaker 03:
All dated.

[00:07:13] Speaker 03:
They all identify who created them.

[00:07:14] Speaker 03:
And they're all backed by metadata.

[00:07:16] Speaker 03:
They're all supported by independent evidence.

[00:07:18] Speaker 02:
Was the metadata introduced in this case?

[00:07:21] Speaker 03:
Absolutely.

[00:07:22] Speaker 03:
Those are all in the exhibits, Your Honor.

[00:07:24] Speaker 02:
And is there some expert that establishes that metadata establishes the dates that those documents were, in fact, created?

[00:07:33] Speaker 03:
We have an expert, Dr. John Martens, who identifies that the documents themselves support, from a Posita standpoint, what the claimed invention is.

[00:07:42] Speaker 03:
Our expert doesn't explicitly identify that the metadata from a scientific standpoint, you know, supports the date, but the metadata itself shows that the dates of last modified are shown in those documents, which were either on the date of the document itself or a day or two after, all of which are before September 27th, 1994.

[00:08:01] Speaker 03:
Again, that's that evidence of an independent nature.

[00:08:04] Speaker 03:
It doesn't require noninventive and a noninventor to testify.

[00:08:08] Speaker 03:
That's like saying,

[00:08:09] Speaker 03:
If we have a notebook, plus the non inventor who's his best friend or a subordinate at his employment, that's better evidence of corroboration than computer generated metadata for that same document or for a document that's created as cat drawings as part of an organized research program like we have here back in the early nineties, 27 years ago.

[00:08:31] Speaker 03:
So indeed, the law doesn't impose some impossible standard of independence and corroborating evidence, and it doesn't require non-inventor witness to sign or to testify about it.

[00:08:43] Speaker 03:
In fact, there's a lot of problems with non-inventor witnesses testifying, similar to inventor witnesses testifying in and of itself.

[00:08:52] Speaker 03:
To elevate that type of evidence over, for example, computer-generated metadata is exactly the antithesis of the rule of reason.

[00:09:01] Speaker 02:
Once I'm mistaken, turn the appendix to page 2427.

[00:09:05] Speaker 02:
I understand this to be your evidence of metadata.

[00:09:13] Speaker 02:
Is that correct?

[00:09:14] Speaker 02:
Am I missing something?

[00:09:16] Speaker 03:
One of them.

[00:09:16] Speaker 03:
One of them, Your Honor.

[00:09:18] Speaker 02:
Please stop interrupting.

[00:09:21] Speaker 02:
So it lists a bunch of file names on the left and the date modified.

[00:09:27] Speaker 02:
And you introduce no independent testimony.

[00:09:30] Speaker 02:
And when I say independent, I mean non-inventor testimony.

[00:09:34] Speaker 02:
as to what these purported files correspond to.

[00:09:38] Speaker 02:
The only testimony you introduced was the inventor himself that says, oh, I'll tell you what each of these files are.

[00:09:45] Speaker 02:
So you've got a bunch of random file names, and then you've got date modified.

[00:09:49] Speaker 02:
You have no independent evidence to show what those files are.

[00:09:53] Speaker 02:
Is that correct?

[00:09:55] Speaker 03:
That's true, but price itself, that case, which was under a clear conviction.

[00:09:59] Speaker 02:
Everything goes back to us having to just believe your inventor and a bunch of documents, which he said, believe me when I tell you what they are.

[00:10:07] Speaker 03:
No, that's not accurate, Your Honor.

[00:10:09] Speaker 03:
The Colecraft case, that's what was missing.

[00:10:11] Speaker 03:
In the Colecraft case, there are, and same with Appetar, those cases, those documents were missing information.

[00:10:18] Speaker 03:
Here, there is no such situation where the inventor is filling in a date or filling in the name of the author here.

[00:10:24] Speaker 03:
That is not true.

[00:10:25] Speaker 02:
The inventor here is filling in what purportedly each of those files are.

[00:10:29] Speaker 02:
That's what he's filling in.

[00:10:31] Speaker 02:
We don't have any evidence as to what those files are.

[00:10:34] Speaker 02:
The inventor's telling us.

[00:10:36] Speaker 02:
Believe me when I tell you, this is the file name that corresponds to my disclosures over here.

[00:10:43] Speaker 03:
The document speaks for itself.

[00:10:44] Speaker 03:
The document shows a file name.

[00:10:46] Speaker 03:
It corresponds back to the document.

[00:10:48] Speaker 03:
Those are actual evidence.

[00:10:51] Speaker 03:
if i may finish my thought here and i'll i'll repress uh... reserve the rest of my time for a bottle ethnic that's federal evidence one thousand one beat that exhibit for example there that metadata documents shown as an original it is that we walked in with the computer show the metadata on a on a floppy disk and then presented it is not it he is not testifying to something that's not in the document itself a reserve the rest of my time for a bottle we will have it for you miss cool from mister abdel nor

[00:11:22] Speaker 04:
Yes, good morning, and may it please the court, Dennis Adenor, on behalf of Apoly Kurt Manufacturing.

[00:11:29] Speaker 04:
Let me start with the requirement for independent evidence of corroboration, which was the subject of the questioning.

[00:11:38] Speaker 04:
And as this court applied in Appator and Colecraft, there is an initial threshold.

[00:11:46] Speaker 04:
There is a bright line rule.

[00:11:47] Speaker 04:
And the requirement for independent evidence

[00:11:50] Speaker 04:
is necessary.

[00:11:52] Speaker 04:
Even with the rule of reason, as we know from Apatow, Brown versus Barbasid and Medicham, the rule of reason did not dispense with this requirement for independence.

[00:12:03] Speaker 04:
Independent evidence remains the key to the corroboration.

[00:12:07] Speaker 01:
But counsel, we have said, counsel, this is Judge O'Malley, we have said, though, that documents don't need to be independently corroborated, right?

[00:12:18] Speaker 04:
Judge O'Malley, you're exactly right.

[00:12:21] Speaker 04:
And so then the question becomes, did Horizon, in this case, attempt to establish any of the inventive facts solely based upon the documents?

[00:12:31] Speaker 04:
And they did not.

[00:12:34] Speaker 02:
Counsel, I don't think you answered Judge O'Malley's question right.

[00:12:38] Speaker 02:
Documents don't need to be independently corroborated.

[00:12:40] Speaker 02:
It depends what they're being offered for.

[00:12:41] Speaker 02:
If an inventor's

[00:12:43] Speaker 02:
lab notebook is being offered to prove the day he conceived of something because it happens to have a penwritten date on it, is that satisfied his burden of proof for the date of conception, for example?

[00:12:59] Speaker 04:
You know what, Judge Moore, you bring up a great point.

[00:13:01] Speaker 04:
I think that's exactly the right distinction, which is the case law says you can look at a document and understand it substantively for what it shows.

[00:13:09] Speaker 04:
But exactly to your question, Judge Moore,

[00:13:12] Speaker 04:
If you're using that document to establish, let's say there's a handwritten date on it, or there's a name on it, if you're trying to use that document alone to establish the date, for example, or that that person did what they purported to have done, or that they did it on the date that's on the document, the document alone, under those circumstances, is going to require independent corroboration, because just like you couldn't necessarily take a copyright date on a prior art

[00:13:42] Speaker 04:
document, you need something in addition to help prove out that that copyright date is a date that it was established.

[00:13:51] Speaker 04:
So I think that is the key distinction.

[00:13:53] Speaker 04:
And that's exactly what the testimony in this case is attempting to do.

[00:13:57] Speaker 04:
Not only is it attempting to show that those documents are what they are, that they're authenticated, but also as to the timing as to who did what.

[00:14:08] Speaker 04:
And in here, you have no evidence

[00:14:12] Speaker 04:
that comes from anybody, any source other than the inventors.

[00:14:16] Speaker 04:
And exhibit 2007 at A2427, if I may pick up where you left off on this metadata, this isn't metadata in the sense of computer files and information that's coming out of the computer.

[00:14:33] Speaker 04:
This is solely a screenshot.

[00:14:35] Speaker 04:
And so we don't know where the screenshot came from.

[00:14:39] Speaker 04:
We don't know that the file names

[00:14:42] Speaker 04:
listed in the screenshot, we don't know what they are.

[00:14:45] Speaker 04:
We don't know that they're associated with it.

[00:14:48] Speaker 02:
I'm sorry.

[00:14:49] Speaker 02:
You're making a valuable point.

[00:14:51] Speaker 02:
I didn't mean to cut you off.

[00:14:52] Speaker 02:
But I guess my question is, it would be different had they actually turned over real metadata, which allowed you to click on each of those files and see what they were, and then look at the date upon which they were last modified.

[00:15:09] Speaker 02:
Is that right?

[00:15:10] Speaker 04:
That's precisely right.

[00:15:11] Speaker 04:
That's right, Judge Moore.

[00:15:12] Speaker 04:
If they would have turned over the actual computer files, they could have done this a couple of different ways as well.

[00:15:18] Speaker 04:
If they would have offered, let's say they had an independent IT technician who puts in an affidavit and tells us what these file names are, how they're kept, where they're kept, tells us something about what that date modified means, and whether it truly means that those documents haven't changed over time.

[00:15:39] Speaker 04:
That's the type of independent evidence that this court's cases really does scream for, and that was absent in this case.

[00:15:49] Speaker 04:
That was frankly absent in Apatow and Colecraft.

[00:15:53] Speaker 04:
Now in both of those cases, the problem was this Catch-22 of corroboration, where the documents alone are being offered to corroborate inventor testimony, but in turn you need the inventor testimony to help

[00:16:08] Speaker 04:
build up those documents and to show those documents are what they are.

[00:16:13] Speaker 04:
And so somewhere in that Catch-22, you need that baseline level of independent corroboration in order to establish a baseline level of sufficient corroboration.

[00:16:28] Speaker 01:
Maybe it's just a choice of words, but the real question about documents is are you able to prove that they

[00:16:38] Speaker 01:
that either they say what they say or purport to say, or are you able to prove that they disclose sufficiently the information that would be needed to corroborate the inventor testimony?

[00:16:53] Speaker 01:
So it's really the credibility of the documents that we're looking for, isn't it?

[00:16:59] Speaker 04:
Yes.

[00:17:00] Speaker 04:
I mean, that's exactly right.

[00:17:01] Speaker 04:
And let me point to, for example, exhibit 2003.

[00:17:05] Speaker 04:
This is A2407.

[00:17:08] Speaker 04:
Because I think this highlights the issue for the court.

[00:17:11] Speaker 04:
This is an undated, unwitnessed picture of a blue box and what appears to be a circuit board.

[00:17:19] Speaker 04:
We don't know anything about the box.

[00:17:21] Speaker 04:
There's no indications.

[00:17:22] Speaker 04:
There's no labels on it.

[00:17:24] Speaker 04:
So what we need with that particular photograph, and frankly, this is very, very similar to Aperture and Colcraft, you need the inventor testimony.

[00:17:32] Speaker 04:
And you've got inventors of oddity who talks about what that box is.

[00:17:37] Speaker 04:
who talks about the hardware components on the box, makes a mention and says, we tested this and that it worked.

[00:17:46] Speaker 04:
There's so much in here that is fundamentally reliant solely on the inventor testimony.

[00:17:53] Speaker 04:
The document, the picture in and of itself, by the way, proves nothing.

[00:17:57] Speaker 04:
And by the way, we know that this picture was taken by the inventor for purposes of this proceeding in 2019.

[00:18:05] Speaker 04:
And it comes into the record only through the affidavit of inventors of Vodni.

[00:18:11] Speaker 04:
And so I really think that puts a fine point on the type of evidence being offered in this case where it's solely inventor testimony that does go really hand in glove with the inventor generated documents.

[00:18:24] Speaker 04:
And the two of them going together creates this Catch-22.

[00:18:28] Speaker 04:
Now the only thing below that Horizon ever pointed to, and they point to it again today,

[00:18:35] Speaker 04:
in the argument is exhibit 2005.

[00:18:37] Speaker 04:
That's the invention disclosure statement.

[00:18:41] Speaker 04:
And counsel was asked about the signatures on that document.

[00:18:45] Speaker 04:
Well, it's only witnessed by co-inventors Albright and Smith in 1993.

[00:18:55] Speaker 04:
And in the evidence in this proceeding, Bull, Smith, and Albright offered affidavits

[00:19:01] Speaker 04:
in which they swore under oath, they said, as of that date, as of January 1993, we believed we, as inventors, had invented this invention.

[00:19:13] Speaker 04:
So this argument that they only believed years later that they were inventors runs contrary to the evidence.

[00:19:22] Speaker 04:
I'm kind of confused.

[00:19:24] Speaker 02:
What are the inventors of?

[00:19:25] Speaker 02:
Aren't you the inventors of a patent, a claim as written in a patent?

[00:19:31] Speaker 04:
Well, exactly.

[00:19:34] Speaker 04:
They're saying today they're inventors of the challenge claims specifically that are at issue in this case.

[00:19:41] Speaker 04:
Horizons offering this evidence to try to establish that they had invented the specific claims of this case before the prior art here.

[00:19:52] Speaker 04:
And so inventors Albright and Smith are now saying, yes, we were inventors of these claims.

[00:19:59] Speaker 04:
Because we had invented them as of January 1993, the exact same date that they were purportedly the witnesses on the invention disclosure document.

[00:20:11] Speaker 00:
In other words, they were always inventors.

[00:20:16] Speaker 04:
They were always inventors, Judge.

[00:20:17] Speaker 01:
I thought they testified that they were inventors as of 1994.

[00:20:23] Speaker 01:
Am I missing something?

[00:20:25] Speaker 04:
Well, there were certain inconsistencies, but there are two sets of claims.

[00:20:32] Speaker 04:
And so they've got one set of claims that they say we had additional features in the middle of 1994.

[00:20:37] Speaker 04:
Oh, you know what?

[00:20:39] Speaker 04:
Actually, I'm sorry.

[00:20:40] Speaker 04:
I think we're talking about January of 1994.

[00:20:41] Speaker 04:
I just had my date wrong.

[00:20:43] Speaker 01:
I apologize.

[00:20:44] Speaker 04:
OK, January 1994.

[00:20:45] Speaker 04:
OK, that's what I thought.

[00:20:46] Speaker 04:
But that's exactly it.

[00:20:48] Speaker 04:
So it was January 94.

[00:20:49] Speaker 04:
They said we were inventors as of that date.

[00:20:51] Speaker 04:
There's no doubt that they were co-inventors when they signed that document.

[00:20:55] Speaker 04:
So you end up with the cross corroboration problem that this court has addressed multiple times.

[00:21:01] Speaker 04:
It's not good enough for a co-inventor to try to offer corroboration of another co-inventor.

[00:21:07] Speaker 04:
That's not independent evidence.

[00:21:09] Speaker 04:
And so the failure for independent evidence in and of itself is sufficient to sustain the board's decision below

[00:21:15] Speaker 04:
There's multiple other reasons that this court can sustain the board's decision below, including that there's no showing and really no argument on appeal, that the board's factual findings under the rule of reason, even putting aside independent evidence, that they're anything but supported by substantial evidence.

[00:21:35] Speaker 04:
And Horizon in its briefing argues that the board excluded evidence, ignored evidence,

[00:21:44] Speaker 04:
or required individual documents to show all the inventive facts in and of themselves.

[00:21:52] Speaker 04:
None of those things actually occurred.

[00:21:54] Speaker 04:
The rule of reason was correctly applied.

[00:21:57] Speaker 04:
The board was quite clear.

[00:21:58] Speaker 04:
A-64, for example, 67 through 71, they looked at the totality of the evidence.

[00:22:04] Speaker 04:
They have page after page going through each document and all the testimony associated with it and correctly found fundamental glaring gaps

[00:22:14] Speaker 04:
in the proof, and again, this is aside from the independent evidence requirement.

[00:22:19] Speaker 04:
Finally, we'll rest on our briefs, but there are multiple additional reasons to sustain the board's decision that are entirely separate from the corroboration finding because the board went on to look at the evidence itself and what it showed, and Horizon has appealed those issues.

[00:22:38] Speaker 04:
We think those in and of themselves are sufficient to affirm.

[00:22:42] Speaker 01:
And if there are no... You might correct that the board expressly found that the invention disclosure itself didn't seem to include all the elements and limitations of the challenge claims?

[00:22:57] Speaker 04:
You're exactly right.

[00:23:00] Speaker 04:
Judge O'Malley, I believe that A66, for example, the board... I'm sorry, one second.

[00:23:09] Speaker 04:
Yeah, I believe it's A66.

[00:23:12] Speaker 04:
uh... sixty seven thank you where the board said we looked at the invention disclosure statement it doesn't satisfied each and every claim limitation of claim by claim basis in the end if you look at uh... for example eight thirty three eight sixty three it says that document is missing the key functional limitations which even by inventors of ideas own uh... statement in his invention disclosure state that the software functionality

[00:23:39] Speaker 04:
and how the microcontroller operated was key to the invention.

[00:23:43] Speaker 04:
And 2005, in and of itself, is missing those fundamental limitations.

[00:23:47] Speaker 04:
And so that's exactly right.

[00:23:49] Speaker 04:
That's another basis to sustain the board's decision below.

[00:23:54] Speaker 00:
Thank you, counsel.

[00:23:55] Speaker 04:
Thank you very much.

[00:23:58] Speaker 00:
Mr. Coupar, I think you have about four minutes of rebuttal time left.

[00:24:10] Speaker 00:
Are you there, Mr. Kupower?

[00:24:12] Speaker 03:
Hey, I'm sorry.

[00:24:13] Speaker 03:
I spoke in a mute.

[00:24:14] Speaker 03:
Apologies, and I'm there.

[00:24:15] Speaker 03:
So the first question was from Judge Moore.

[00:24:17] Speaker 03:
Did we provide the electronic documents here?

[00:24:19] Speaker 03:
We did.

[00:24:20] Speaker 03:
We provided that in discovery here during the PTAP proceeding.

[00:24:24] Speaker 03:
So that was provided.

[00:24:25] Speaker 03:
In response, what did Kurt do?

[00:24:27] Speaker 03:
Nothing.

[00:24:27] Speaker 03:
Kurt took one deposition of Zavodny, did not take the depositions of the other three witnesses, particularly Smith and Kokarney.

[00:24:35] Speaker 03:
who developed those CAD drawings and the metadata that goes with it.

[00:24:38] Speaker 03:
It went in unrebutted.

[00:24:40] Speaker 03:
If there was any issue with that metadata, Your Honors, that would have been addressed through deposition or argument.

[00:24:45] Speaker 03:
It was never raised.

[00:24:47] Speaker 03:
And this Court has repeatedly stated both in Price as well as DuPont and on NOR that when you have unrebutted testimony, attorney argument is not rebuttal evidence to that.

[00:25:00] Speaker 03:
Number two is with respect to claims 64 and 70 that goes to that first invention disclosure of January 1994.

[00:25:07] Speaker 03:
And then the remaining claims one and 65 through 70 there is a difference here in the fact pattern that that was one of the conflation points by the board here.

[00:25:16] Speaker 03:
That that January 1994 invention disclosure form that inventors of oddity provided to his

[00:25:23] Speaker 03:
uh... company if that's the catch at the very top was provided to his boss the director of engineering marcia albright she reviewed it the first pages she sent that off to her patent attorney that entire document is the invention disclosure form for claims sixty four and seventy the argument that the board raised regarding uh... that the functional limitations are explicitly in those documents is that not the law as long as a puppy that can understand those

[00:25:50] Speaker 03:
Circuit diagrams and understand the functions of what an accelerometer is or a microprocessor, the input circuit, the accelerometer, that's all you need here.

[00:26:00] Speaker 03:
And that's exactly what Dr. Martens, our expert, did.

[00:26:03] Speaker 03:
Again, did Kurt rebut that?

[00:26:05] Speaker 03:
No, there is no rebuttal expert evidence from their rebuttal expert.

[00:26:09] Speaker 03:
If a posita would not understand the functionality of those circuits, their expert would have had a field day.

[00:26:15] Speaker 03:
No such evidence.

[00:26:16] Speaker 03:
Again, it's mere attorney argument.

[00:26:18] Speaker 03:
Finally, the invention with respect to claims one and 65 through 70 at the display circuit.

[00:26:24] Speaker 03:
Again, Kumar Kulkarni came on board in early 1994, worked with Bruce Smith and Marsha Albright to develop that additional display circuit, which is shown repeatedly in the exhibits on the CAD drawings.

[00:26:37] Speaker 03:
Again, those CAD drawings are independent on its face.

[00:26:40] Speaker 03:
They show it to Kancha.

[00:26:41] Speaker 03:
They're normal ordinary course documents that were created.

[00:26:44] Speaker 03:
These aren't personal inventorship documents.

[00:26:48] Speaker 03:
On a final note, I think this case, if affirmed, will create bad policy and new law that would overturn literally decades of law here on its head.

[00:26:57] Speaker 03:
This is the first time, when you look at La Cote, when you look at DuPont and similar cases along those lines, what you have are situations where there are strong organized research programs.

[00:27:08] Speaker 03:
And Kodak in the La Cote case, DuPont similarly here, we're able to adapt.

[00:27:14] Speaker 02:
I want to make sure I understand your representation.

[00:27:16] Speaker 02:
This is Judge Moore.

[00:27:17] Speaker 03:
Yes, yes.

[00:27:18] Speaker 02:
Did you indicate that you did, in fact, turn over metadata, actual metadata, and not a screenshot of it in this case?

[00:27:27] Speaker 03:
100% yes.

[00:27:28] Speaker 03:
Mr. Abdelnar did not respond to you properly.

[00:27:32] Speaker 03:
We did.

[00:27:32] Speaker 03:
And that is part of the evidence here.

[00:27:36] Speaker 02:
I'm looking at a brief.

[00:27:38] Speaker 02:
What is this brief?

[00:27:40] Speaker 02:
It is January 29, 2021, corrected response brief of appellee.

[00:27:46] Speaker 02:
Do you have a copy of that?

[00:27:47] Speaker 04:
I do.

[00:27:49] Speaker 02:
Okay, on page 13 of that brief, it says that the only thing you turned out over is a screenshot listing of information with various file names.

[00:27:58] Speaker 02:
It says it is not metadata and Horizon never introduced any metadata into the record.

[00:28:05] Speaker 02:
That is a... You didn't respond to that in your reply.

[00:28:08] Speaker 03:
And that's a false statement.

[00:28:10] Speaker 02:
Council, council.

[00:28:11] Speaker 02:
Did it respond to it in your reply?

[00:28:13] Speaker 02:
And there's no evidence in anywhere in this appendix to the contrary.

[00:28:17] Speaker 02:
All you introduced in the appendix over which you have complete control is a screenshot.

[00:28:22] Speaker 03:
And that's incorrect.

[00:28:23] Speaker 03:
That's a false statement by opposing counsel in the brief.

[00:28:26] Speaker 03:
And again, if this case is affirmed on that basis.

[00:28:30] Speaker 02:
How in the world am I supposed to understand that counsel has completely misrepresented the state of evidence if you don't respond to it or introduce it in the appendix?

[00:28:40] Speaker 03:
We did, Your Honor.

[00:28:42] Speaker 03:
Where did you respond to it?

[00:28:44] Speaker 03:
Absolutely.

[00:28:45] Speaker 03:
Where we cite to the federal rule of evidence 1001D, right there.

[00:28:50] Speaker 02:
cite me, and since you're telling me you responded directly to that, where in your brief did you respond to it?

[00:28:56] Speaker 03:
One moment, Your Honor.

[00:28:57] Speaker 03:
It's where we identify the Federal of Evidence 1001D.

[00:28:59] Speaker 03:
That was our entire point.

[00:29:01] Speaker 03:
If you take a screenshot of the, for example, of a screenshot of a computer monitor, that's the equivalent of it being, quote, an original, unquote, under Federal of Evidence 1001D.

[00:29:14] Speaker 03:
That's our entire point, both in our opening brief.

[00:29:16] Speaker 01:
As long as you disclose all the underlying

[00:29:19] Speaker 01:
documentation and you're saying... Which we did.

[00:29:21] Speaker 03:
We did.

[00:29:22] Speaker 01:
But did you do it in this proceeding or was it in the related district court proceeding?

[00:29:26] Speaker 01:
Both.

[00:29:27] Speaker 02:
Counsel, I'm looking on page 22 and you never claim you disclosed the metadata.

[00:29:32] Speaker 02:
I'm on page 22 of your reply brief.

[00:29:34] Speaker 02:
You didn't cite me to the point but I found it.

[00:29:36] Speaker 02:
It doesn't say you disclosed the metadata.

[00:29:39] Speaker 02:
It says you're defending the printouts as authenticated.

[00:29:43] Speaker 02:
You're claiming the printouts are good enough.

[00:29:45] Speaker 02:
Right.

[00:29:46] Speaker 03:
What we did was we provided both.

[00:29:47] Speaker 03:
We provided the underlying ESI and what we presented to the PTAP are the screenshots themselves, which again, under federal evidence, 1001D is more than sufficient.

[00:29:57] Speaker 03:
Same with district court.

[00:29:58] Speaker 03:
I can walk in with screenshots showing the underlying metadata and that is sufficient.

[00:30:03] Speaker 03:
In fact, that's the Colecraft case.

[00:30:05] Speaker 03:
What happened in Colecraft?

[00:30:06] Speaker 03:
There's a little side note in Colecraft.

[00:30:08] Speaker 02:
What happened in Colecraft was the invent... Judge Moore, I just want to express...

[00:30:12] Speaker 02:
My extraordinary frustration.

[00:30:14] Speaker 02:
I believe that throughout your brief, you have exceeded the bounds of zealous advocacy and I believe you just did the same in oral argument.

[00:30:22] Speaker 02:
You just told me an oral argument and you can go back and listen to the recording that you did in fact disclose the metadata when I told you

[00:30:29] Speaker 02:
that in the response brief they said you didn't, you said we told you we did, Your Honor.

[00:30:35] Speaker 02:
I asked you where, you said I don't know, but we did.

[00:30:37] Speaker 02:
I found where by finding, you said we did it where we talked about federal rule of evidence, 1001.

[00:30:44] Speaker 02:
So I found the only place in your brief where you talked about that.

[00:30:47] Speaker 02:
You didn't point me to it, but I found it.

[00:30:48] Speaker 02:
And in that location, it never says that you did, in fact, disclose the metadata.

[00:30:53] Speaker 02:
I feel like you have exceeded what I find to be permissible in terms of your representations to this court, and I would urge you in the future to be much more careful.

[00:31:03] Speaker 02:
I have no interest in listening to you any further because I don't trust what you're saying.

[00:31:08] Speaker 03:
I'm sorry about that, Your Honor, but that's the record evidence.

[00:31:11] Speaker 03:
We provided that in discovery here, and that's the truth.

[00:31:16] Speaker 03:
uh... as for the corroborating evidence here of an independent nature again we presented four hundred fifty nine pages contemporary is contemporaneous business record documents we provided computer-generated metadata again but the but but we follow the federal of evidence their judge more specifically it says there that you can provide screenshots in court or in p tap

[00:31:38] Speaker 03:
And that will serve as originals.

[00:31:40] Speaker 03:
And we even provided the underlying ESI to opposing counsel in both this case as well as the district court case, which on this issue was stated when we went so far as to provide it into both.

[00:31:50] Speaker 03:
We provided the council.

[00:31:52] Speaker 03:
Okay, thank you.

[00:31:53] Speaker 00:
You have your time.

[00:31:55] Speaker 00:
We have your argument.

[00:31:56] Speaker 00:
The case is submitted.

[00:31:57] Speaker 03:
Thank you, Your Honor.

[00:32:02] Speaker 02:
The honorable court is adjourned until tomorrow morning at 10 a.m.