[00:00:00] Speaker 02: Good afternoon. [00:00:01] Speaker 02: Our next case is Ideal Innovations, Inc. [00:00:05] Speaker 02: versus United States 20-2065. [00:00:10] Speaker 02: Mr. Davis, are you ready to proceed? [00:00:13] Speaker 01: I am, Your Honor. [00:00:14] Speaker 01: Thank you. [00:00:15] Speaker 02: Okay. [00:00:15] Speaker 02: And you have reserved four minutes of your time for rebuttal. [00:00:19] Speaker 02: Is that correct? [00:00:20] Speaker 01: I have. [00:00:21] Speaker 02: All right. [00:00:21] Speaker 02: You may start, please. [00:00:24] Speaker 01: Thank you and may it please the court, Ahmed Davis, on behalf of Tell and Ideal Innovations. [00:00:30] Speaker 01: The court of federal claims here made a number of errors in determining that summary judgment was proper. [00:00:37] Speaker 01: But the most glaring is its determination that an actual reduction to practice could not occur until a fully assembled vehicle with the armor placed on the vehicle as claimed was tested. [00:00:52] Speaker 01: This precedent's courts make clear [00:00:54] Speaker 01: that the necessity and the sufficiency of testing is a fact-laden inquiry and whether an invention works for its intended purpose should be measured from the perspective of the inventor himself as a person of ordinary skill in the art. [00:01:09] Speaker 01: In this case, the Court of Federal Claims appears to have overlooked that guidance. [00:01:15] Speaker 01: There was uncontroverted testimony in the record from inventor Bob Coker that he believed [00:01:23] Speaker 01: that the invention would work for its intended purpose by the time of a March 2006 coupon fire that took place. [00:01:33] Speaker 00: The evidence showed... This is Judge Stoll. [00:01:37] Speaker 00: Is it your position that this was a legal error or was it a... I should say, was it an error because you think there's a genuine issue, material fact that's raised by the inventors' testimony? [00:01:50] Speaker 00: Is that your primary argument? [00:01:53] Speaker 01: I think the primary argument... The first answer to your question is it's both a legal and a factual error, Judge Stoll. [00:02:05] Speaker 01: The primary argument that I'm making today is the factual error because there was uncontroverted testimony in the record that created a tribal issue of fact that made summary judgment inappropriate. [00:02:20] Speaker 00: So is your dispute with the court holding that it was necessary to actually test the impaired armor vehicle in order to see if it works for its intended purpose? [00:02:35] Speaker 00: Or like, in other words, that it's the scope of the testing, which is a factual issue, the type of tests required, that's a factual issue. [00:02:42] Speaker 00: And so is that the fact question that you're disputing? [00:02:46] Speaker 01: Absolutely. [00:02:47] Speaker 01: That's correct, Your Honor. [00:02:50] Speaker 01: the Court of Federal Claims in its order of, I believe it was May 21st, circumscribed the rules for what it called the mini trial. [00:03:02] Speaker 01: And number four in that order was that ideal innovations would not be able to contest at the trial that there needed to be a fully assembled vehicle that met the limitations of the claims and had the armor. [00:03:20] Speaker 01: where the factual dispute came in. [00:03:22] Speaker 01: Because this court's precedents are clear, whether it's in the context of an interference of Scott versus Finney or Tasket versus Dettlinger, whether it's a jury trial such as Barry v. Medtronic, whether it's on summary judgment with slip-track systems, that the appropriate analysis has to be from the perspective of an ordinarily skilled artisan. [00:03:45] Speaker 01: And the only evidence of record at the time [00:03:48] Speaker 01: that Judge Damage issued that decision was the declaration of Mr. Coker. [00:03:56] Speaker 01: And Mr. Coker averred in his declaration that the March 2006 coupon fire satisfied him that the invention would work for... Okay. [00:04:07] Speaker 02: Counselor, before you go further, I want to clarify something. [00:04:11] Speaker 02: So I thought that one of your arguments was that the Court of Federal Claims applied an erroneous legal standard for [00:04:18] Speaker 02: on actual reduction to practice. [00:04:21] Speaker 02: You're not arguing that? [00:04:23] Speaker 01: We are arguing that as well, Judge Moreno. [00:04:30] Speaker 01: Would you like for me to address that? [00:04:32] Speaker 01: I can address that one now. [00:04:33] Speaker 00: I mean, essentially, the argument... Judge Stowe, before you move on, I want to ask you one other question, which is, did you let Judge Damage know [00:04:42] Speaker 00: that you contested his finding number four on page JA3310, which is what you were referring to earlier. [00:04:53] Speaker 01: We did, and specifically the context in which that... We set it forth in our brief opposing summary judgment what the proper standard was, and after Judge Damage issued that order, he set a telephonic conference for the parties [00:05:11] Speaker 01: And during that telephonic conference, the excerpts of which appear in the record at Appendix 33-13 through 33-31, we explained to Judge Damage, number one, that it's a factual matter. [00:05:30] Speaker 01: We weren't going to be able to satisfy that standard. [00:05:32] Speaker 01: But more importantly, that under the governing law, that wasn't necessary. [00:05:40] Speaker 00: specifically, what page in that range of 3313 to 3333? [00:05:44] Speaker 00: You say, we think that the question of what kind of testing had to occur is a factual question, and we think there's a genuine issue of material fact that precluded you from finding that the actual test necessary does not have to be of the armored vehicle, or that there's a genuine issue of fact that it has to be of the armored vehicle. [00:06:06] Speaker 00: Where is that in that range of 3313 to 3331? [00:06:14] Speaker 01: Your Honor, I believe that it is in the upper left-hand corner of 3315. [00:06:22] Speaker 01: We explained that we were putting on, we were planning on putting on evidence to show that it was satisfied by what Mr. Coker believed and supporting it with the testimony of Mr. Mark King, the Vice President for Staridine. [00:06:36] Speaker 00: Are you saying, I'm at page 3315. [00:06:38] Speaker 00: Are you telling me to look at page 11, you know, in the transcript on there? [00:06:44] Speaker 01: I was looking at page 9, but it continues on to page 11, that's correct, where we cite Scott V. Finney and we cite the slip-track systems case as well. [00:06:58] Speaker 01: And so if you look, continuing on your honor, if you look down in the bottom right-hand corner of the mini-script at page 12, we say, and so I guess we'd say that both [00:07:08] Speaker 01: Because issues of reduction of practice is a question of law, based on underlying issues of fact, our dispute would be on both of those fronts. [00:07:17] Speaker 00: I'm just wondering where you specifically, is there a specific place, and you don't have to answer right now, you can answer on rebuttal, but is there a specific place where you talk about contesting finding four on page JA3310, and specifically say that he couldn't, there's a genuine issue of material fact about the type of testing necessary. [00:07:38] Speaker 00: So if you can find that for me, I'd appreciate it. [00:07:41] Speaker 01: Sure. [00:07:44] Speaker 01: Thank you, Your Honor. [00:07:45] Speaker 01: I will do that. [00:07:46] Speaker 01: And if it's OK with your honor, I'll try to point that out. [00:07:51] Speaker 04: Can I just follow up, though? [00:07:53] Speaker 04: You're pointing us to all this conversation on these pages that are numbered 9 through 12 in the mini transcript. [00:08:01] Speaker 04: But if you look at the bottom of page 12, [00:08:05] Speaker 04: Judge Dan has notes that you could have made those arguments in your papers for summary judgment, but suggests that you hadn't made those arguments sufficiently. [00:08:14] Speaker 04: I mean, I understand your point about what's the genuine issue here, but it seems to me you're shifting, you've had shifting theories of why summary judgment wasn't proper here. [00:08:25] Speaker 04: And it goes from, oh, well, the effective date of the agreement was this, and it turns out you couldn't prove that date. [00:08:33] Speaker 04: And then various things about whether an actual test of the vehicle or not. [00:08:38] Speaker 04: So I'm a little confused about, and like I just told, I want to know exactly where you've made clear to judge damage appropriately and in papers opposing summary judgment that you disagreed with his point four. [00:08:56] Speaker 01: I appreciate that. [00:08:57] Speaker 01: Thank you, Judge Hughes, and I will look for that specific site. [00:09:02] Speaker 01: What I can tell you, Your Honor, for context is that I can appreciate why the court says it looks like the positions in opposing summary judgment may have changed. [00:09:13] Speaker 01: I'm not sure that I necessarily would agree with that, so much so as from a balance perspective, what it was that the Court of Federal Claims [00:09:25] Speaker 01: said that it was interested in from our perspective appeared to change. [00:09:30] Speaker 01: And so when the parties first opposed summary judgment, what we said was there are factual issues in dispute related to the issue of actual reduction to practice. [00:09:44] Speaker 01: And the court on its own specifically said the only thing that I'm interested in right now is the specific dates [00:09:55] Speaker 01: in the crater and when the crater was signed. [00:09:58] Speaker 01: Beyond that, I don't really see any disputed issues of fact. [00:10:03] Speaker 01: And so. [00:10:04] Speaker 04: And when did you come back specifically somewhere in writing and say that's not the only issue? [00:10:10] Speaker 04: Because it does seem to me that you argued, well, we do have a dispute of fact here. [00:10:14] Speaker 04: We think we can prove that the reduction in practice predated the one data testing everybody agreed happened of the full vehicle. [00:10:25] Speaker 04: That seemed to be the focus. [00:10:27] Speaker 04: And I get you may think that Judge Sandwich was directing you to a certain thing, but where did you preserve all these other arguments explicitly rather than leading him down the path to think you were going to prove a bunch of other things and then came back to him ultimately and said, well, we can't prove that. [00:10:44] Speaker 04: What you're asking for, we don't have any evidence on. [00:10:47] Speaker 04: It really seems to me like, you know, you've led him. [00:10:50] Speaker 04: If it is a genuine issue of material fact that you've led him into this error because you haven't [00:10:55] Speaker 04: properly apprised him of what was needed to be decided. [00:11:00] Speaker 01: Sure. [00:11:01] Speaker 01: I appreciate that. [00:11:02] Speaker 01: And again, I will pull that site. [00:11:04] Speaker 01: Again, what I can tell, Your Honor, is that as early as that first teleconference in October of 2019, when the Court of Federal Claims said, I want to limit this to just the issue of the date for the CRETA, [00:11:23] Speaker 01: We specifically identified during that hearing that there were other issues and other arguments that needed to be raised, and that's in the transcript of the hearing of Appendix 3283 and the Continuum One pages up to 3285. [00:11:41] Speaker 01: I hear that I'm now into my rebuttal time. [00:11:44] Speaker 01: Can I, unless the court has further questions, I'll reserve on that time. [00:11:49] Speaker 02: Okay. [00:11:51] Speaker 02: Let's move on. [00:11:52] Speaker 02: Mr. Hanna, you have 13 minutes if you set aside. [00:11:57] Speaker 05: Thank you, Your Honor. [00:11:58] Speaker 05: Good afternoon. [00:11:59] Speaker 05: Alex Hanna on behalf of Appellee of the United States may please the court. [00:12:03] Speaker 05: This court should affirm the claims court properly granted summary judgment only after I3 expressly admitted an appendix 3314. [00:12:13] Speaker 05: It could not meet its burden of proving the first actual reduction of practice predating the [00:12:19] Speaker 04: Council, this is Judge Hughes. [00:12:21] Speaker 04: Can I just get you right to the point here? [00:12:24] Speaker 04: Is the question of what kind of testing is required for reduction to practice a factual question, or is it a legal question? [00:12:36] Speaker 05: Your Honor, whether an invention has actually been reduced to practice is a legal question based on subsidiary... That's not what I... Well, yeah, but that's not what I ask you. [00:12:45] Speaker 04: I ask you whether testing was required [00:12:48] Speaker 04: is a factual or legal question. [00:12:50] Speaker 04: It seems to me in your brief, you even agreed that the scope of testing required to show reduction of practice was a factual question. [00:13:00] Speaker 05: Your Honour, we don't think in this case it would matter because there was no testing. [00:13:07] Speaker 04: Can you answer the question though? [00:13:09] Speaker 04: Is it a factual question? [00:13:11] Speaker 05: Your Honor, we think that ultimately it's a legal question, but I... Okay. [00:13:16] Speaker 04: Okay. [00:13:16] Speaker 04: You're not going to answer it. [00:13:17] Speaker 04: So let me just assume for purposes of the rest of my questions, it's a factual question. [00:13:23] Speaker 04: And look, I get how you're here because it does seem to me that your counsel on the other side has shifted the different issues of genuine issue of fact, but isn't there sufficient evidence [00:13:37] Speaker 04: of both the inventor's testimony and whatever else he points to to suggest that either the inventor or the skilled artisan, whichever standard you wanted to use, would have known based upon the coupon testing and the weight distribution and the fact that a prototype was made that that was a reduction practice. [00:13:57] Speaker 04: Isn't that sufficient evidence to show a material issue of fact? [00:14:04] Speaker 05: No, Your Honor, for several reasons. [00:14:06] Speaker 05: First, the March 2006 coupon testing was simply a test of prior armor. [00:14:12] Speaker 05: The first patent application that led to the issuance of the time barred 540 kind, that's not a part of the appeal, was filed in August of 2006. [00:14:20] Speaker 05: That test happened before the filing date of that patent. [00:14:24] Speaker 05: It was a test of prior armor coupons. [00:14:27] Speaker 05: It was not a test. [00:14:29] Speaker 05: There is no record. [00:14:30] Speaker 00: Counsel, what about [00:14:32] Speaker 00: Council, this is Judge Soule. [00:14:33] Speaker 00: I'm sorry. [00:14:34] Speaker 00: I just want to make sure you're answering the question. [00:14:36] Speaker 00: I mean, we have at page A3300 in Judge Damage's order, he says that he recognizes that plaintiff's position is that something less than testing of a full vehicle is required. [00:14:53] Speaker 00: And he says that there's inventor testimony that [00:14:57] Speaker 00: that the coupon testing combined with knowing the weight of the coupon and what kind of weight the commercially available vehicle could handle, that that is plaintiff's argument for reduction, the only testing that was required, that that would satisfy testing for the intended purpose or the scope of testing required. [00:15:19] Speaker 00: Why doesn't that raise a genuine issue of material fact? [00:15:24] Speaker 05: Your honor, because in this case, testing is required under the common sense. [00:15:30] Speaker 00: This is testing. [00:15:33] Speaker 00: You could say you need a specific kind of testing of the vehicle, but you can't just tell me that testing is required. [00:15:40] Speaker 00: Here, the plaintiff's position is that testing of the coupon and knowing the weight of the coupon armor [00:15:49] Speaker 00: as well as, you know, how much the commercially available vehicle could handle in terms of weight and still be mobile, that that would be enough to satisfy the testing required to show that the invention works for its intended purpose. [00:16:04] Speaker 00: Again, it's at page A3300. [00:16:07] Speaker 00: And I want to know why that doesn't raise a genuine issue of material fact regarding testing to show that there was testing before the CRETA date [00:16:18] Speaker 00: to show that it worked for its intended purpose? [00:16:23] Speaker 05: Because, Your Honor, that test was not a test of the claimed unique configuration of the armor on the vehicle. [00:16:31] Speaker 05: That is what the claims are directed to. [00:16:33] Speaker 05: The claims court correctly found at Appendix 3305 that the intended purpose of the invention is to protect soldiers against various kinds of explosives while preserving the mobility of the vehicle. [00:16:47] Speaker 05: That fact that your honor raises fails for two reasons. [00:16:51] Speaker 05: Number one, that was not a test of the unique configuration of armor that the inventor touted. [00:16:58] Speaker 05: It was also not a test involving the mobility of the vehicle. [00:17:02] Speaker 05: And frankly, Mr. Cotcher's after the fact 2018 declaration was not only not contemporaneous with his claims after a reduction of practice date, [00:17:14] Speaker 05: It was also uncorroborated, Your Honor. [00:17:18] Speaker 05: So it cannot create a genuine disputed issue of material. [00:17:23] Speaker 00: And having a little bit of a hard time with your corroboration point, because it seems undisputed to me that the March 2006 test occurred, right? [00:17:32] Speaker 00: And so the rule of corroboration is a rule of reason. [00:17:35] Speaker 00: And so I'm supposed to look and see whether, under a rule of reason, there's some corroboration for what he says about what happened in the past. [00:17:43] Speaker 00: And the fact that everybody agrees the March 2006 test of armor occurred [00:17:48] Speaker 00: That seems pretty well corroborated. [00:17:50] Speaker 00: So I guess what you're saying is because he went beyond that and said, hey, once I knew it was the armor work and I knew how much weight the commercially available vehicle could handle, I would know that the work invention would work for its intended purpose. [00:18:05] Speaker 00: You're saying that specific narrow part is not corroborated. [00:18:09] Speaker 05: It's not, Your Honor. [00:18:12] Speaker 05: And the rule of reason articulated or discussed in Scott v. Finney [00:18:17] Speaker 05: also says that it did not do away with the testing requirement. [00:18:22] Speaker 00: Do you agree that Damage didn't deal with the corroboration, the rule of reason instead? [00:18:28] Speaker 00: He said as a matter of law, the testing that's required must be of the vehicle with armor on it, right? [00:18:36] Speaker 05: The testing, Judge Damage correctly found that the testing must be of the claimed armored vehicle [00:18:43] Speaker 05: with the armor on it after he correctly found as a matter of law what the intended purpose was. [00:18:48] Speaker 05: And this court reasoned and slipped track that in some cases where the invention is particularly complicated, the absence of testing may be sufficient in and of itself to justify a grant summary judgment. [00:19:00] Speaker 05: That's exactly what happened here. [00:19:02] Speaker 05: They don't have any testing evidence. [00:19:04] Speaker 05: It does not exist because the vehicle was never tested as a complete vehicle with the unique claims configuration of armor, Your Honor. [00:19:12] Speaker 00: Do you agree that the scope of testing required to show that a claim works for its intended purpose is a question of fact? [00:19:27] Speaker 05: The question ultimately, Your Honor, is a question of law. [00:19:31] Speaker 05: And while it might be a question of fact, it would not matter in this case because that evidence does not exist. [00:19:40] Speaker 05: all of their discovery requests. [00:19:42] Speaker 04: Counsel, this is Judge Shees again. [00:19:44] Speaker 04: Let me try it this way. [00:19:46] Speaker 04: Is your position that the court's intended purpose finding, which is a legal conclusion, is correct, that the invention is a vehicle with mobility and protection requirements, and that the factual assertions regarding the testing of that invention [00:20:08] Speaker 04: are insufficient to create a genuine issue of fact of whether the vehicle itself would satisfy the intended purpose of the invention because the only way to show that the vehicle with mobility and protection would work is to test the actual vehicle as opposed to test pre-existing armor and just do weight calculations. [00:20:36] Speaker 05: I believe that's correct, Your Honor. [00:20:38] Speaker 05: A material issue of fact is one that might affect the outcome of the suit. [00:20:43] Speaker 05: In a genuine dispute, it doesn't exist unless the evidence is such that a reasonable fact finder could return a verdict for the nonmoving party. [00:20:51] Speaker 05: So you're correct, Your Honor, that the evidence that they point to cannot possibly create a genuine disputed issue of material fact. [00:21:04] Speaker 04: And the only evidence we have are the armor coupon test of the prior art armor and the inventor's testimony. [00:21:14] Speaker 04: And I guess we have some evidence that the armor was actually put on a vehicle and looks like it met the weight requirements. [00:21:26] Speaker 05: That evidence, Your Honor, I believe Your Honor is referring to the photographs. [00:21:30] Speaker 05: Those are unauthenticated, unproven photographs. [00:21:33] Speaker 04: We don't have any expert testimony or the like from the patentees suggesting that this would have worked for its intended purpose. [00:21:45] Speaker 05: That's correct, Your Honor. [00:21:47] Speaker 05: No such data exists in the record. [00:21:56] Speaker 02: Okay, anything else? [00:21:59] Speaker 05: Yes, Your Honor. [00:22:01] Speaker 05: The appellants argue that [00:22:03] Speaker 05: The court abused its discretion in denying discovery under 5060. [00:22:08] Speaker 05: But the court of federal claims correctly reason that it's not enough that the plaintiff may have constructed the patented vehicle before the effective date of the CRETA. [00:22:16] Speaker 05: It must have also been shown to be fit for its intended purpose. [00:22:19] Speaker 05: And IG recognizes that a court may reject a request for discovery under rule 5060 if what is sought has no chance of leading to the denial of summary judgment. [00:22:28] Speaker 05: That is precisely the situation here. [00:22:31] Speaker 05: Specifically, on June 18, 2019, I-3 served discovery only on the defendants, not on any third party, including Sarah Dye. [00:22:39] Speaker 05: I-3's discovery was not directed to test evidence. [00:22:42] Speaker 05: On October 4, 2019, the claims court ordered a mini trial on, among other things, the effective bait of the crater, but stated in a follow-on order just three days later, it will permit, and I quote, broader discovery if the parties believe it to be necessary. [00:22:58] Speaker 05: I-3 never sought broader discovery. [00:23:01] Speaker 05: During an October 9, 2019 status conference, the Claims Court expressly expressed it did not want to open this discovery up to everything that may be relevant to the CRETA, but just what is relevant to the effective date. [00:23:14] Speaker 05: I3 did not object, nor did I3 request discovery to be broadened in light of the Claims Court's invitation. [00:23:20] Speaker 05: To the contrary, I3 concurred with the CSC. [00:23:24] Speaker 05: and stated exactly, Your Honor, that's exactly our intention as well, given your guidance, to focus on the effective date of the CRETA and the execution of it. [00:23:32] Speaker 05: That's at Appendix 3268 to 3269. [00:23:37] Speaker 05: After a brief discovery period on March 16, 2020, pursuant to the party's joint stipulation regarding mini-trial facts and motion for an order staying discovery again, while March 13, [00:23:50] Speaker 05: 2020, the claims court issued an overstaying discovery regarding the many trial issues previously identified by the court. [00:23:58] Speaker 05: Here, the claims court did not deny I-3 an opportunity for discovery, nor did it abuse its discretion. [00:24:06] Speaker 05: And finally, the appellant makes an argument regarding the 2006 REF contract. [00:24:12] Speaker 05: First, I-3 waived its novel argument concerning the REF contract. [00:24:16] Speaker 05: That argument was never properly raised in the claims court. [00:24:19] Speaker 05: I-3's motion to file a certified Appendix 3217 to 3222 was denied at 3251, so its argument was never properly before the claims court nor considered. [00:24:31] Speaker 05: Now, for the first time on appeal, I-3 argues that when properly interpreted, the CRETA cannot transfer rights in the patents to the government. [00:24:39] Speaker 05: According to I-3, because the early arrest contract did not address patent rights, the claims court should not have reached the issue of whether the CRETA provided a license to the government. [00:24:48] Speaker 05: But if this is a court of review, it does not consider new arguments in the first instance, not raised below in the claims court. [00:24:55] Speaker 05: Notwithstanding I-3's waiver, its novel argument fails. [00:24:59] Speaker 05: The CRETA is a standalone agreement with... Sorry, Your Honor. [00:25:03] Speaker 05: I believe my time is up. [00:25:04] Speaker 02: You can finish up that sentence. [00:25:07] Speaker 05: Thank you, Your Honor. [00:25:07] Speaker 05: As the CRETA is a standalone agreement with a merger clause, I-3's argument relating to I-3's affirmative intent is misplaced. [00:25:15] Speaker 05: I-3 did not argue that a contractual term is ambiguous to perhaps justify reference to a contracting party's intent or extrinsic evidence. [00:25:24] Speaker 05: Thank you, Your Honors. [00:25:25] Speaker 02: Yes, thank you. [00:25:27] Speaker 02: Mr. Tambura? [00:25:29] Speaker 03: Yes, good afternoon. [00:25:31] Speaker 03: Thank you, Your Honors. [00:25:32] Speaker 03: I'm going to move the quips out of the time you have to watch, Josh. [00:25:35] Speaker 03: I have three, two minutes, so let me get started. [00:25:39] Speaker 03: Um, to answer a lot of the questions about what kind of a test the, uh, you know, the requirement for testing is, the, uh, this court appears to treat that as an objective standard, especially in, um, Scott versus Fane. [00:25:55] Speaker 03: The language is the testing requirement depends on the facts of each case with the court guided by a common sense. [00:26:01] Speaker 03: The court applies a reasonable new standard, as Scott's case says, as well. [00:26:07] Speaker 03: It also says, in each case, the court will examine the record to discern whether the testing, in fact, demonstrated a solution to the problem intended to be solved by the invention. [00:26:17] Speaker 03: In slip-track, this court stated, in some cases where the invention is particularly complicated, the absence of testing may be sufficient in and of itself to justify a grant of summary judgment for lack of reduction of the practice. [00:26:30] Speaker 03: So it seems to be treated, and there's language about it being an issue of fact, but it seems to be treated by the court as an objective standard, especially when there is a complex invention, as we have here, not by anybody's admission except the appellants themselves. [00:26:50] Speaker 03: The appellants admit that this is an inherently dangerous nature of an armored vehicle, an appendix 456 and 2559. [00:26:59] Speaker 03: There are many variables associated with shooting, shooting EFPs at unique angles at brand new armored vehicles at appendix 3406. [00:27:12] Speaker 00: Council, I just want to ask you, um, [00:27:14] Speaker 00: Do you view the scope of testing, a court's determination regarding the scope of testing required to show that an invention meets its intended purpose? [00:27:27] Speaker 00: That's a question of fact, isn't it? [00:27:31] Speaker 03: The cases say it is a quote-unquote question of fact. [00:27:34] Speaker 03: However, when I read these, you know, stop and subtract, they treat it as an objective test that's seen here. [00:27:41] Speaker 03: Well, an objective test. [00:27:45] Speaker 03: But it's still a question of facts. [00:27:47] Speaker 03: It's based on underlying facts. [00:27:49] Speaker 03: Obviously, yes. [00:27:50] Speaker 03: The court takes in the facts, considers, number one, the intended purpose, which we think seems exactly right on, considered the complexity of the invention, and the more complex the invention, we believe the more to the end of the spectrum of the full test of the claimed embodiment is required. [00:28:12] Speaker 03: If I could just say one more thing, Your Honor, [00:28:14] Speaker 03: Um, so, so they, they're, they're all over the record saying that this has been a dangerous and unpredictable invention. [00:28:23] Speaker 03: And, um, there are heavy armor in some locations, no armor in other locations and light armor in other locations at 34 or six. [00:28:32] Speaker 03: Uh, nobody believed it would work. [00:28:34] Speaker 03: Okay. [00:28:35] Speaker 03: Including people in the tank industry within the military are saying it wouldn't work appendix 34 or six. [00:28:43] Speaker 03: This is by definition a complex invention with a lot of uncertainty and when you have that type of invention, it's much more important to do a test of the claimed embodiment and about the coupon test which you are questioning. [00:29:02] Speaker 03: That was a test of prior art armor, admittedly so, by the appellants. [00:29:08] Speaker 03: That was not a test of reclaimed invention. [00:29:11] Speaker 03: The invention was not armor that could stand. [00:29:15] Speaker 00: I do understand that. [00:29:16] Speaker 00: I understand it. [00:29:17] Speaker 00: My only concern is whether there's a general initial material effect. [00:29:20] Speaker 00: I fully understand your position. [00:29:21] Speaker 00: Um, and, and I know what the test was about. [00:29:25] Speaker 00: I've read the record. [00:29:25] Speaker 00: Thank you. [00:29:27] Speaker 03: Thank you. [00:29:28] Speaker 03: Um, do I still have any time? [00:29:31] Speaker 02: Uh, you can wrap it up. [00:29:33] Speaker 02: Sure. [00:29:34] Speaker 03: Okay. [00:29:34] Speaker 03: I'll just to wrap it up, your honor. [00:29:36] Speaker 03: The, um, according to Scott versus training, what matters for testing is that it demonstrated a solution to the problem intended to be solved by the invention. [00:29:48] Speaker 03: The invention here is a vehicle with heavy armor in only certain locations. [00:29:54] Speaker 03: That was not tested to be able to protect the occupants until March of 07 under the cradle. [00:30:02] Speaker 03: Any testing done before that, you don't know if the vehicle is going to protect the occupants. [00:30:07] Speaker 03: You may know that the Armour coupon itself [00:30:10] Speaker 03: then you'd stand a, a, a, an EFP being shot directly at it. [00:30:14] Speaker 03: But that's not their adventure. [00:30:16] Speaker 03: Their adventure is taking that armor and putting it on a vehicle. [00:30:21] Speaker 03: And then you have to test that vehicle to see if that vehicle will protect the occupants and remain mobile. [00:30:28] Speaker 03: That was not done until March of those seven, Your Honors. [00:30:33] Speaker 02: Okay. [00:30:35] Speaker 02: All right. [00:30:35] Speaker 02: We thank you for that argument. [00:30:37] Speaker 02: Mr. Davis, you have four minutes. [00:30:39] Speaker 01: Thank you very much. [00:30:40] Speaker 01: Let me just quickly respond to what Mr. Tim Burrow just said, my esteemed colleague on the other side. [00:30:45] Speaker 01: Unfortunately, none of what he just articulated is actually in the record except for the declarations that were submitted at the 11th hour that appellants never had an opportunity [00:30:56] Speaker 01: to respond to. [00:30:58] Speaker 01: That's part of the reason why we believe there was a fundamental error with respect to the Rule 56D ruling. [00:31:04] Speaker 01: There was a factual issue here, but at the very least, the parties should have been able to take that discovery to oppose summary judgment. [00:31:12] Speaker 01: Now, with respect to the questions that Judge Hughes and Judge Stoll asked during my initial argument, unfortunately, I see in looking at the joint appendix that the specific pages [00:31:26] Speaker 01: of our summary judgment brief that articulated that summary judgment standard were not submitted including in the Joint Appendix itself. [00:31:37] Speaker 01: The pages that were excerpted are at 2802 and 2805 and continuing on to 2812. [00:31:47] Speaker 01: Those are the portions of the brief identifying [00:31:50] Speaker 01: The factual dispute, I'll make a representation to the court that in the legal section we addressed that issue, but I acknowledge that it was not in the joint appendix that was submitted to the court. [00:32:05] Speaker 00: Having said that... Well, this is structural. [00:32:09] Speaker 00: I mean, the question was whether you told Judge Damage that that finding regarding the scope of testing [00:32:18] Speaker 00: is a factual finding that you dispute, and that should conclude summary judgment. [00:32:24] Speaker 00: So, I'm concerned because you said it's in the legal section, which doesn't... I'm sorry. [00:32:31] Speaker 01: If that's the case, I misunderstood your question. [00:32:34] Speaker 01: I apologize, Judge Spilow. [00:32:36] Speaker 01: I thought the question was whether we had apprised Judge Danich that there was a legal requirement [00:32:44] Speaker 01: about whether there needed to be a full and complete embodiment. [00:32:47] Speaker 01: That's what I understood your question to be. [00:32:49] Speaker 01: I apologize. [00:32:49] Speaker 00: Okay. [00:32:50] Speaker 00: My question is whether... I'm concerned that maybe you didn't tell Judge Damage that you thought there was a genuine material fact that precluded him from finding that an actual test is necessary to prove that the prototype of the armored vehicle works for its intended purpose. [00:33:07] Speaker 00: That's finding four on page 3311. [00:33:10] Speaker 00: And I want to know if you contested that and let him know that you thought there was a genuine issue of material facts. [00:33:16] Speaker 01: Sure. [00:33:17] Speaker 01: So for that, I would direct the court to the joint stipulation that was filed at appendix 3288 to 3293, and in particular at page 3292 at the time [00:33:32] Speaker 01: where the plaintiffs say that we expect to demonstrate that genuine issues of dispute material facts exist. [00:33:39] Speaker 00: Did you say 3292? [00:33:41] Speaker 01: I did, Your Honor. [00:33:43] Speaker 00: I don't have that. [00:33:44] Speaker 00: I don't. [00:33:45] Speaker 00: Well, wait. [00:33:45] Speaker 00: Let me look. [00:33:46] Speaker 00: Maybe I did. [00:33:46] Speaker 00: I'm sorry. [00:33:47] Speaker 00: Okay. [00:33:47] Speaker 00: I'll try to find that. [00:33:49] Speaker 00: Sure. [00:33:51] Speaker 00: Thank you. [00:33:52] Speaker 00: I was looking at the wrong volume. [00:33:53] Speaker 00: Thank you. [00:33:54] Speaker 01: That's right. [00:33:56] Speaker 01: In the interest of time, Your Honor, at the top of Appendix 3392, [00:34:00] Speaker 01: we did identify for the court that there were these factual issues. [00:34:05] Speaker 01: And that is something that was submitted before the court issued order granting summary judgment. [00:34:11] Speaker 01: And so the last point that I'll just raise is this one. [00:34:15] Speaker 01: Mr. Tamboro made an argument there. [00:34:19] Speaker 04: Sorry, Mr. Davis. [00:34:20] Speaker 04: Mr. Davis, this is Judge Hughes. [00:34:21] Speaker 04: I just want to follow up on this because this paragraph is helpful. [00:34:28] Speaker 04: Your view is that there is a genuine issue of fact of whether the evidence you submitted shows that the vehicle would work for its intended purpose, right? [00:34:39] Speaker 01: Yes, we do, Your Honor. [00:34:43] Speaker 04: And is this the evidence you're talking about? [00:34:45] Speaker 04: Is there anything else other than this evidence of the prior test, the armor coupon testing, the declaration and the fact that there looks like [00:34:56] Speaker 04: through photos that a vehicle was built. [00:34:59] Speaker 04: Is there anything else we should be looking at to determine whether it's a genuine issue of fact? [00:35:05] Speaker 01: So there's that. [00:35:07] Speaker 01: There is an additional email from Gary Chamberlain, one of the people that was working on behalf of Ideal Innovations in the record at 2490 to 2491 that goes to the issue of mobility that the court raised. [00:35:27] Speaker 02: Any other questions? [00:35:30] Speaker 02: I heard the bell go off, Mr. Davis. [00:35:34] Speaker 02: So I think you're out of time. [00:35:36] Speaker 02: I'll let you conclude. [00:35:37] Speaker 01: I appreciate the time, Your Honor. [00:35:42] Speaker 01: In conclusion, I think what we'd say is that in this particular instance, at the end of the day, there was no facts [00:35:52] Speaker 01: before the court that led to summary judgment. [00:35:55] Speaker 01: And so this case is very much like slip track systems in that regard. [00:36:00] Speaker 01: And summary judgment is not appropriate. [00:36:06] Speaker 02: OK. [00:36:06] Speaker 02: We thank all the parties for their arguments this morning. [00:36:11] Speaker 02: The two cases we heard arguments on are now submitted. [00:36:13] Speaker 02: And that concludes our argument for this morning. [00:36:19] Speaker 04: The honorable court is adjourned until tomorrow morning at 10 a.m.