[00:00:00] Speaker 02: Our next case is Pacific Biosciences versus Oxford Nanopore Technologies, 2020-2155. [00:00:08] Speaker 02: Mr. Reinus. [00:00:12] Speaker 04: Thank you, Your Honor, and may it please the Court. [00:00:14] Speaker 04: The judgment in this case should be reversed because ONT's calculated exploitation of the COVID crisis to eliminate order violations resulted in the invalidation of two patents without clear and convincing evidence. [00:00:29] Speaker 04: There is simply insufficient evidence to support the enablement verdict. [00:00:33] Speaker 04: Let me start with the Jamal issue, please. [00:00:35] Speaker 02: Mr. Reinerts, are these patents what are sometimes referred to as paper patents, where they've had a constructive reduction of practice by filing, but no prior actual reduction of practice? [00:00:52] Speaker 04: That's correct, Your Honor. [00:00:55] Speaker 02: All right. [00:00:56] Speaker 02: Well. [00:00:59] Speaker 02: Yeah, go ahead. [00:01:01] Speaker 04: So on the J-Mall, the ONT's dedicated and only expert, Dr. Goldman, admitted that the invalidated claims could be successfully performed at the critical date. [00:01:12] Speaker 03: Mr. Reinus, this is just Toronto. [00:01:15] Speaker 03: I'm going to interrupt you and just explore some things that maybe you can clarify. [00:01:19] Speaker 03: So this admission is a single question and answer. [00:01:28] Speaker 03: The question was specifically about 400 Claim 1. [00:01:35] Speaker 03: You don't distinguish 400 Claim 1 from the other claims, and 400 Claim 1 conspicuously is a claim that does not have the enzymatic control element. [00:01:48] Speaker 03: So why would the admission as to 400 Claim 1 [00:01:55] Speaker 03: serve as an admission for all the rest of the claims and you argue them as a group. [00:02:00] Speaker 03: Isn't there something self-limiting about the very admission that you rely on? [00:02:05] Speaker 04: Not at all. [00:02:07] Speaker 04: That's not an issue anyone's raised. [00:02:09] Speaker 04: No one suggested that the claims don't rise and fall together. [00:02:12] Speaker 04: The absence of enzyme being in there. [00:02:15] Speaker 04: The attempt by O&T is to pivot to enzyme is being not enabled. [00:02:21] Speaker 04: So the fact that there's no [00:02:23] Speaker 04: specific limitation to that, if anything, improves the position for 400-claim-1, whereas if someone's claiming that, you might say, okay, well, then there's more of an obligation to enable. [00:02:35] Speaker 04: But even without the... I mean, the admission's clear. [00:02:38] Speaker 04: I mean, at least it's the claim-1 of the 400-pat. [00:02:41] Speaker 04: How about that? [00:02:42] Speaker 03: Well, let me just press back on that. [00:02:47] Speaker 03: Let's assume that it was an admission that claim-1 of the 400 was enabled. [00:02:53] Speaker 03: That does not imply enablement of the other claims, which all have this other element, namely enzymatic control. [00:03:09] Speaker 04: If you could, if you, it's a broader claim. [00:03:13] Speaker 04: So if a broader claim is enabled, then a narrower claims are enabled, and no one's made this argument. [00:03:18] Speaker 04: It wasn't made below. [00:03:19] Speaker 04: It wasn't made in the SEO briefing. [00:03:22] Speaker 04: But a broader claim is harder to enable. [00:03:26] Speaker 04: So I just disagree with that. [00:03:29] Speaker 04: And there was no argument about the breadth of the claim aid. [00:03:32] Speaker 04: But more to the point. [00:03:34] Speaker 03: And I'm sorry, one other kind of related question. [00:03:37] Speaker 03: The Atkinson grant, which I guess is at 1836. [00:03:40] Speaker 03: This is like a grant application. [00:03:45] Speaker 03: I wasn't able to tell. [00:03:47] Speaker 03: Was that document in the public domain at some point? [00:03:50] Speaker 03: And if so, when? [00:03:52] Speaker 04: Yes, it was prior art, and it described it. [00:03:57] Speaker 03: It might describe prior art. [00:03:59] Speaker 03: I did not see in the testimony you cited asserting it as prior art. [00:04:03] Speaker 03: That testimony, at least when I read it, did not say this document was publicly available before, what is it, 2009 or something. [00:04:12] Speaker 04: Again, it is, so that's obtainable. [00:04:16] Speaker 04: It's from well before then. [00:04:18] Speaker 04: Atkinson was asked about it. [00:04:22] Speaker 04: and specifically acknowledged that it was describing his work from the 2005 time period. [00:04:28] Speaker 04: And that's when it was. [00:04:30] Speaker 04: And no one's made an argument that Act and Grant was in prior hours. [00:04:35] Speaker 04: We put it in our opening brief, and it was undisputed. [00:04:37] Speaker 04: These are undisputed items. [00:04:40] Speaker 04: But even if the admission wasn't clear as day, under this court's law, the two sentences asserting that N is not [00:04:52] Speaker 04: uh... enablement it calculation and is insufficient it's completely conclusory it doesn't describe how much work would be taken what people would know why it's a problem none of that is is stated there's case after case is a remarkably long line of authority this court that that kind of conclusory uh... testimony is not good the witness couldn't identify any evidence that supported it he he stated predictability wasn't something he testified about it there's no [00:05:20] Speaker 04: It's nothing. [00:05:23] Speaker 04: And then in terms of a point that I want to make here is that the written description of the challenge was rejected by the jury, and it was on the same theory. [00:05:33] Speaker 04: So the jury accepted that the inventors possessed the calculation of N, because that was the exact same theory, because the opinion on both of those differences is the same one sentence. [00:05:47] Speaker 04: And that just doesn't make any sense. [00:05:50] Speaker 04: And really, you know, I think the record is so good. [00:05:54] Speaker 01: This is Judge Stoll. [00:05:55] Speaker 01: I just, I understand your argument. [00:05:58] Speaker 01: I just want to make sure I understand now the jury also heard an alternative reasons for why the claims were not enabled, including whether the patents enabled the Nanopore sequencing method, including use of enzymes to control translocation, right? [00:06:16] Speaker 01: So that's, we have to presume that the jury found [00:06:20] Speaker 01: that there was an enablement on that basis as well, correct? [00:06:25] Speaker 04: That is absolutely right. [00:06:27] Speaker 04: Okay. [00:06:28] Speaker 04: And I have two responses on that. [00:06:30] Speaker 04: The first one is that wasn't argued, that wasn't adopted by their own expert. [00:06:36] Speaker 04: If Judge Torano is right in the supposition for his question, if Claim 400 was successfully used, that is not a poor sequencing. [00:06:45] Speaker 04: So the admission of Goldman himself is inconsistent with that argument. [00:06:49] Speaker 04: It isn't an argument that was made, but more to the point, they attempted to rely on an expert for the 929 patent, Dr. Herdlicka, and he repeatedly testified squarely that it was enabled. [00:07:01] Speaker 04: And that's, you know, in 1330 through 1332, again and again, he testified that nanopore sequencing was enabled as of 2008 and 2009. [00:07:12] Speaker 04: And Acheson admitted it, specifically with enzymes, [00:07:17] Speaker 04: That's A1417 at 975. [00:07:20] Speaker 04: He has his 177 patent document from, that Herdlica said, enabled natipore sequencing. [00:07:30] Speaker 04: And, I mean, there's so many different instances where he said it. [00:07:34] Speaker 04: But, I mean, at 1331, and you just told the jury that Axon teaches natipore sequencing, correct? [00:07:41] Speaker 04: And you even referred, you called out helicases in specific. [00:07:44] Speaker 04: Helicase enzymes, correct? [00:07:45] Speaker 04: Correct. [00:07:46] Speaker 04: That's what their own experts said that they're trying to pivot to for this issue. [00:07:49] Speaker 04: And Paxson himself, he admitted that he performed low resolution sequencing in the late 1990s because he filed a patent, the 714 patent, on nanopore sequencing in the 1990s. [00:08:03] Speaker 04: Come on, people. [00:08:05] Speaker 04: And so the 714 patent is marked on their website as protecting their product, a nanopore sequencer. [00:08:12] Speaker 04: It claims nanopore sequencing. [00:08:14] Speaker 04: Their own witnesses said, yes, we did low-resolution nanopore sequencing before the patent application was filed in 2000. [00:08:26] Speaker 04: That's at A1412, 955 from 3 through 10. [00:08:30] Speaker 04: The 7A2 patent, which was the basis for their IPR where they claimed nanopore sequencing was obvious and was obvious, that's in the record. [00:08:40] Speaker 04: That was stated to be nanopore sequencing in the record. [00:08:43] Speaker 04: That's at A1412. [00:08:44] Speaker 04: The 503 patent was filed in 2003. [00:08:48] Speaker 04: That's on nanopore sequencing. [00:08:50] Speaker 04: All three of these patents with different inventorship groups are listed on their website. [00:08:57] Speaker 04: Even today, your clerks can go and look up Oxford Nanopore and its patents, and all these nanopore sequencing patents will be on there. [00:09:04] Speaker 04: They've admitted that they teach nanopore sequencing. [00:09:07] Speaker 04: This is a fake issue. [00:09:09] Speaker 02: Mr. Reinus, this is a jury verdict, and the jury heard [00:09:14] Speaker 02: all the evidence including that which you were arguing and this was described as a nascent technology and that there are no working examples here and there's no guidance on determining in and so why shouldn't we accept all these judgments made by the jury? [00:09:42] Speaker 04: For one thing, that's the whole purpose of JMAW. [00:09:44] Speaker 04: I just went through. [00:09:44] Speaker 04: There can't be a whole litany of patents that all claim nanopore sequencing that they're working on, that their witness experts say enable, and then say the jury could choose otherwise. [00:09:55] Speaker 04: It's just anti-intellectual, and that's the point of JMAW. [00:09:58] Speaker 04: But I do want to focus on one thing specifically. [00:10:02] Speaker 04: You mentioned this issue of the patent teaches nothing about calculating n. And the district court in rote fashion repeated that. [00:10:11] Speaker 04: And it's untrue. [00:10:13] Speaker 04: They cite Ackerson for it at A140708. [00:10:16] Speaker 04: There's no reference to the patent at all. [00:10:19] Speaker 04: Ackerson just said, I didn't know how to, I didn't consider N. There's no reference at all. [00:10:24] Speaker 04: And then Desimus just said there was not a step-by-step instruction for calculating N. You calculate N empirically. [00:10:31] Speaker 04: You add bases on the end and you change them up and it's described in column 40 and you can figure it out. [00:10:39] Speaker 04: If you add a different base and it shows a different current level, then you know that it's affecting it. [00:10:45] Speaker 04: If not, not. [00:10:47] Speaker 04: In fact, the patent says you can figure out the percentage contributed using this technique by each base. [00:10:53] Speaker 04: So the fact that this idea that this panel is going to accept that there was no reference at all to how to do it in the patent based on both Pelley and the district court statement that Acton and Dez support that point is vacuous. [00:11:11] Speaker 04: I've got limited time, unless there's more questions on this, but finding that nine to four sequencing was not at all, you know, wasn't enabled as a field in 2009, [00:11:22] Speaker 04: It's just inconsistent. [00:11:23] Speaker 04: It's inconsistent with the representations of their own council that there was a 101 violation to the 400 patent because not a four sequence, it was conventional at the time. [00:11:34] Speaker 04: Please, I mean, how could that be? [00:11:37] Speaker 04: And I've given you a list of patents and a list of admissions from their experts point blank on this point. [00:11:43] Speaker 04: That's what Jamal's for and that's what [00:11:48] Speaker 04: this appeals for. [00:11:50] Speaker 04: And please look at those citations. [00:11:53] Speaker 04: Now, with respect to why the problem occurred, there was prejudicial misconduct here. [00:11:58] Speaker 04: That was elaborate, central, baseless, and scary. [00:12:02] Speaker 04: There is a reasonable probability that scaring people, that taking the Oxford Nanopore product off the market would hamper the fight against COVID at the peak of the scare is [00:12:18] Speaker 04: outrageous. [00:12:19] Speaker 04: And, you know, I just, they're all, they confess to it. [00:12:22] Speaker 03: Mr. Ryan, this is Judge Toronto. [00:12:25] Speaker 03: Do we have in the joint appendix the slides that were given to you the night before in which you got some kind of taste for what the other side might do? [00:12:42] Speaker 04: I don't think so. [00:12:44] Speaker 04: I don't think so. [00:12:45] Speaker 04: But this is this opening the door argument. [00:12:48] Speaker 03: No, no, no, no, no. [00:12:49] Speaker 03: Two separate points. [00:12:51] Speaker 03: Opening the door is that you planned to mention COVID or coronavirus in a passing way. [00:12:58] Speaker 03: But the other point was that you got slides the night before and I'm inferring from what I've read was that those slides didn't begin to capture the extent of [00:13:17] Speaker 03: what was actually done by the other side at the opening argument, but I haven't laid eyes on those slides. [00:13:23] Speaker 03: If those slides set forth everything that the other side did at opening the next day and you didn't object in advance, that would look a little bit different from what it would look like if you got a very small taste of it and then a much [00:13:45] Speaker 03: much more intense and lengthier harping on the coronavirus aspect was done at the actual opening argument without warning. [00:13:56] Speaker 04: And that's what I'm trying to understand. [00:13:58] Speaker 04: Very good question, but this is more of the blaming the victim. [00:14:01] Speaker 04: You know, no, it didn't spell out any of this fantasy story about Wuhan or vaccines or death, family, gopaks. [00:14:11] Speaker 04: It had none of that. [00:14:12] Speaker 04: But I objected in the middle of the opening statement, which is an unenviable position for counsel. [00:14:19] Speaker 04: And we were diligent in immediately calling out outrageous limine violation. [00:14:25] Speaker 03: What's the JA site for the objecting in the middle of the opening? [00:14:33] Speaker 04: Just reading it. [00:14:39] Speaker 04: I don't know that immediately. [00:14:42] Speaker 03: Okay, maybe you can tell me about it. [00:14:45] Speaker 04: Yeah, a rebuttal. [00:14:46] Speaker 04: I can handle that easily. [00:14:48] Speaker 04: Unless there's other questions, I'll preserve whatever you let me preserve. [00:14:53] Speaker 03: I do just have one question. [00:14:55] Speaker 03: And again, I don't want to put aside this blaming the victim label. [00:15:02] Speaker 03: You asked for a curative instruction. [00:15:04] Speaker 03: The curative instruction was given. [00:15:07] Speaker 03: In substance, [00:15:10] Speaker 03: conveys an idea that the jury is not to worry about taking things off the market. [00:15:16] Speaker 03: It may have been milder than one can count on the jury really taking in. [00:15:23] Speaker 03: What if you had asked for and the judge had considered an instruction that hammered the point home by saying, [00:15:36] Speaker 03: The question of taking this off the market, even if you find infringement and validity, is not a question for the jury. [00:15:45] Speaker 03: It's a question for me. [00:15:46] Speaker 03: And I can assure you, the jury, that I, if there is evidence that taking it off the market would do harm to public health, I will not allow it to be taken off the market. [00:16:02] Speaker 03: At most, Oxford would have to pay [00:16:05] Speaker 03: money for the use. [00:16:07] Speaker 03: Now, that was not given in that kind of specific form. [00:16:16] Speaker 03: Would that have been an alternative for you to request? [00:16:22] Speaker 04: Another good question. [00:16:23] Speaker 04: And you know, in crafting what we did, it was a horrible situation, especially with each passing day. [00:16:32] Speaker 04: No, no one wants to go near this issue. [00:16:34] Speaker 04: And I think that record is absolutely clear on that. [00:16:36] Speaker 04: So we couldn't have mentioned anything getting into this was very dangerous. [00:16:41] Speaker 04: We came up with it as a vanilla statement that wouldn't remind the jury about the whole covid crisis that was emerging at the time and scaring everyone. [00:16:50] Speaker 04: And, you know, getting asking the judge to parse what would be the after trial release is something that I think in general, you know, people avoid. [00:16:59] Speaker 04: Our whole point was [00:17:01] Speaker 04: What the relief was after trial was not something for the jury to consider. [00:17:05] Speaker 04: That's why we moved to Lemonade. [00:17:07] Speaker 04: And so we were forced into trying to make the best of the situation. [00:17:11] Speaker 04: What I would say is, you know, the jury did a horrible job of following instructions in general. [00:17:18] Speaker 04: Just the example where they upheld on written description and now people are saying that they found the calculation and not enabled, which this panel seems to be tolerating to some degree. [00:17:33] Speaker 04: And they did a horrible job of following instructions. [00:17:37] Speaker 04: And the Draper case, which is described in the Third Circuit as the seminal case, is clear enough that the curative didn't change it. [00:17:44] Speaker 04: And Feynman, too, said the same thing. [00:17:48] Speaker 04: with insufficient to overcome vaccine, Wuhan, deaths, family, GOPAC, and everything else. [00:17:55] Speaker 04: And it's just common sense. [00:17:57] Speaker 02: Is there a question that hasn't been answered, Judge Toronto? [00:17:59] Speaker 02: Yes, thank you. [00:18:02] Speaker 02: Mr. Reinus, we will give you three minutes of rebuttal after we hear from Mr. Haas. [00:18:11] Speaker 00: Thank you, Your Honor. [00:18:12] Speaker 00: Michael Haas for Oxford Nanopore. [00:18:15] Speaker 00: I'm going to start, actually, where counsel for PacBio ended. [00:18:18] Speaker 00: I want to talk a little bit about this claim that the jury got it all wrong. [00:18:24] Speaker 00: It was horrible. [00:18:24] Speaker 00: It was sloppy. [00:18:26] Speaker 00: Specifically, the only reference we hear as to how the jury got it all wrong was that they rejected the written description defense. [00:18:34] Speaker 03: Mr. Haas, this is Judge Rhonda. [00:18:36] Speaker 03: I just want to say for myself, I'm not much interested in that question. [00:18:40] Speaker 03: Can you talk about the evidence on enablement? [00:18:44] Speaker 03: that is very, such evidence as there is about the specific elements of this claim that might, of these claims, that might differentiate them from nanopore sequencing as a generic concept. [00:18:59] Speaker 00: Yes, and I think that's very helpful. [00:19:02] Speaker 00: And, you know, they have this question-answer pair, and it's on page 14 of the blue brief. [00:19:07] Speaker 00: And there are two things about this question-answer pair that are very important for you to know. [00:19:12] Speaker 00: It's referring to the Atkinson grant. [00:19:15] Speaker 00: And we'll talk about why that's important. [00:19:17] Speaker 00: It was important to the jury. [00:19:18] Speaker 00: Second, it's only talking about claim one of the 400 patents. [00:19:23] Speaker 00: And that's important for the very reason you noted, Judge Toronto. [00:19:26] Speaker 00: Claim one. [00:19:26] Speaker 03: Although I don't remember you're actually making that point in your brief. [00:19:31] Speaker 00: Well, what we pointed to, Your Honor, was that the Atkinson grant [00:19:35] Speaker 00: goes to the testimony of Dr. Atkinson. [00:19:39] Speaker 00: And I'd like to move you to that, because that's a very important distinction here. [00:19:44] Speaker 00: If you look, and our brief actually did go into detail on the question of the requirement of the inside. [00:19:52] Speaker 00: But I want to tie it in, because the jury got it all tied in in testimony. [00:19:57] Speaker 00: And when you pull out this one question answer pair, you don't get that, which is what they're trying to do. [00:20:03] Speaker 00: But on page 1406 of the record, or of the appendix, and that's the trial record at page 934, line 17. [00:20:15] Speaker 00: So this is where Dr. Ackerson is asked about the specific grant applications. [00:20:22] Speaker 00: So if you can turn with me there. [00:20:24] Speaker 00: And you'll see he told the jury, this is dealing with this particular type of artificial DNA portion. [00:20:32] Speaker 00: a DNA hairpin. [00:20:35] Speaker 00: And he had told the jury, as part of this testimony, and this goes back to page 920, he told the jury, here's an article that spells it all out for you. [00:20:45] Speaker 00: And that was in the record. [00:20:46] Speaker 03: And by the way, do you agree that this grant application was available as a public document? [00:20:56] Speaker 00: No, I don't know if it would meet public accessibility. [00:20:59] Speaker 00: I believe that if someone [00:21:01] Speaker 00: You wanted to request from NIH this document, they could get it, but they might not have any reason or knowledge to do that. [00:21:09] Speaker 00: I mean, this wasn't an issue. [00:21:11] Speaker 00: We never went into evidence on that. [00:21:14] Speaker 00: But you could request it, Your Honor. [00:21:16] Speaker 00: So the grant application is about this DNA hairpin, which is an artificial known nucleus. [00:21:24] Speaker 00: And it's actually not DNA. [00:21:25] Speaker 00: And I'll show you how you know that and how the jury knew that. [00:21:29] Speaker 00: And if you'll turn with me. [00:21:31] Speaker 00: In this case, we're going into to look at specifically what the jury was told was a history of the DNA. [00:21:38] Speaker 00: So the jury was instructed by Dr. Eikerson about how this grant fit into the whole development of DNA sequencing. [00:21:47] Speaker 03: So are you saying it was not a nucleic acid template? [00:21:52] Speaker 03: It was a nucleic acid template, Your Honor. [00:21:54] Speaker 03: OK, so what claim element are you focusing on that differentiates [00:21:59] Speaker 03: that the Akison grant that you're talking about? [00:22:04] Speaker 00: Your Honor, the key point is that these jury instructions require that the full scope of the claim be enabled. [00:22:12] Speaker 00: So what we have here is a situation where one of the claims, claim one of the 400 patents, did not have the requirement that you control the speed at which the nucleic acid moves through the nanopore. [00:22:27] Speaker 00: And that's critical, because what that meant was you could have this one very odd experimental artificial portion of RNA, actually, not DNA, that Dr. Akeson had, in fact, created this hairpin. [00:22:45] Speaker 00: And this is described in this historical article, which is in the appendix at page 1862. [00:22:51] Speaker 00: And the description of it is at 1863. [00:22:54] Speaker 00: And it states the approach, and I'm reading here under the section distinguishing purine and pyrimidine segments. [00:23:03] Speaker 00: And it says, the approach was to synthesize an SSRNA oligomer comprising 70 cytosine nucleotides followed by 30 adenine nucleotides. [00:23:20] Speaker 00: So this is an incredibly artificial [00:23:23] Speaker 00: But it is RNA. [00:23:24] Speaker 00: We're not saying it's not a nucleic acid. [00:23:27] Speaker 00: But it was one that was created by Dr. Eikerson so that he could test the one point when it changed from these 70 nucleotides to the following 30 nucleotides. [00:23:42] Speaker 00: The reason he did that was because he couldn't control the speed. [00:23:45] Speaker 00: And so he needed a way to test even when he couldn't control the speed. [00:23:50] Speaker 00: But the key point, and he made this in his testimony, he talks about this specifically in his testimony, just two pages later at page 936, he then distinguishes the problem that still existed even given his grant. [00:24:06] Speaker 00: He's asked, now, why was this a problem? [00:24:09] Speaker 00: And he's talking about the way the DNA is going through the core. [00:24:13] Speaker 00: And he says, it's fast. [00:24:15] Speaker 00: So this is, again, appendix page 1407. [00:24:18] Speaker 00: 936 in the transcript, line 14. [00:24:22] Speaker 00: Now, why was this a problem? [00:24:24] Speaker 00: It's fast. [00:24:25] Speaker 00: For 100 nucleotide fragment, it goes through in about 300 microseconds, which is too fast to read. [00:24:32] Speaker 00: And how did you address that challenge? [00:24:34] Speaker 00: We addressed it by using enzymes. [00:24:37] Speaker 00: So the jury heard that, yes, there was an acosine grant. [00:24:41] Speaker 00: Yes, it could do this one artificial known portion of RNA. [00:24:47] Speaker 00: And you could see that one change between 70 identical nucleotides and 30 identical nucleotides. [00:24:54] Speaker 00: But to actually enable the full scope of this claim, and there's no question that the full scope of this claim includes actually sequencing unknown DNA, which was the whole point of having the enzyme-controlled speed, that wasn't available. [00:25:11] Speaker 00: So this question-answer pair that is relied upon so heavily by PacBio [00:25:16] Speaker 00: shows one very unusual, it's not unimportant, right? [00:25:21] Speaker 00: It helped in the research, but it certainly is not a reasonable full scope of this claim. [00:25:28] Speaker 00: And the jury understood that. [00:25:29] Speaker 00: And that's where the jury could synthesize this question and answer with the uncontested facts that PacBio never did any of this. [00:25:41] Speaker 00: The uncontested fact that 700 scientists [00:25:44] Speaker 00: were silent and you could hear a pin drop when years later Oxford actually announced they had sequenced DNA. [00:25:53] Speaker 00: Because the Ackerson grant isn't a sequence of DNA. [00:25:57] Speaker 00: The Ackerson grant is if I have a known artificial portion of RNA where there's only one change between a first set of identical nucleotides and a second set of nucleotides, I can see that change. [00:26:14] Speaker 00: So this is the case where full scope matters, because the fact that they have one question answer pair as to one very specific possibility that was in the prior research for their broadest claim doesn't in any way create a J-mol with regard to the full scope of the broad claim that includes using enzymes to control the rate so that you can actually read [00:26:44] Speaker 00: individual basis of a true DNA sequence. [00:26:50] Speaker 00: So the broadness of this claim is what does it in. [00:26:54] Speaker 00: There's uncontested facts. [00:26:56] Speaker 00: There's their own internal emails where they refer to the work being done by Oxford as amazing work years after these applications are filed. [00:27:07] Speaker 00: There is so much that this jury could rely on in saying when you look at the full scope of these claims, [00:27:14] Speaker 00: We have substantial evidence. [00:27:16] Speaker 00: And remember, the question here is substantial evidence. [00:27:18] Speaker 00: We keep hearing from the other side, well, look at this one piece and look at this other piece. [00:27:22] Speaker 00: But the jury got to look at the pieces that aren't being referred to by the other side. [00:27:27] Speaker 00: They got to look at all the uncontested facts about how they never even reached the feasibility stage. [00:27:35] Speaker 00: And that was admitted by their first witness, the inventor admitted that. [00:27:40] Speaker 00: And that's in the record and it's in the appendix. [00:27:43] Speaker 00: on page A1104. [00:27:46] Speaker 00: He was asked, and so it's true, sir, that PacBio never even progressed to the feasibility phase on nanopore sequencing, correct? [00:27:54] Speaker 00: His answer, yes, that's true. [00:27:56] Speaker 00: Not that they got partway through it, not that they achieved some feasibility in some areas but not others, but that they never even attempted feasibility. [00:28:06] Speaker 00: So the jury, in considering this evidence, and in JAMO what we look at is, is there any [00:28:13] Speaker 00: substantial evidence that would support the verdict. [00:28:16] Speaker 00: The judge, the district court here, went through all this evidence and said, there certainly was. [00:28:20] Speaker 00: And you don't analyze it by just looking at a particular question-answer pair that's highlighted by the movement. [00:28:29] Speaker 00: You analyze it by looking at the record as a whole. [00:28:32] Speaker 00: And that's the Third Circuit Law, and it's certainly the law that this court applies [00:28:36] Speaker 00: and looking at J-MALS on an issue that has so much factual underpinning as this does. [00:28:41] Speaker 03: Would you mind turning to the prejudicial opening? [00:28:45] Speaker 03: No problem, Your Honor. [00:28:48] Speaker 03: First of all, just as a factual matter, can you compare what you, or I don't know if it was you, but I'm using you as for your client, said during the opening [00:29:03] Speaker 03: to what you gave in the way of slides the night before as a preview. [00:29:13] Speaker 00: Yes, I can, Your Honor. [00:29:15] Speaker 00: So the slides the night before did point out that we had in our trial exhibits this article about what was going on in Wuhan. [00:29:23] Speaker 00: And so there was certainly an understanding that we were going to be discussing [00:29:28] Speaker 00: that some of this equipment was being used. [00:29:30] Speaker 00: And that was the same discussion, obviously, that was in the opening by PacBio. [00:29:36] Speaker 00: Unlike PacBio, we didn't say that our technology may lead to a vaccine, which is what they said in their opening. [00:29:42] Speaker 03: But... Am I remembering correctly? [00:29:45] Speaker 03: Their mention of coronavirus was literally either one sentence or even one line in the transcript? [00:29:53] Speaker 00: I believe it's... Yours went on at... [00:29:57] Speaker 03: considerable length. [00:29:59] Speaker 00: We gave more details about what we were doing there. [00:30:02] Speaker 00: That's true, your honor. [00:30:03] Speaker 00: But on the other hand, for example, we didn't, we weren't the ones who said, you know, jury, you ought to be thinking about this. [00:30:09] Speaker 00: And we weren't the ones who said our technology may lead to a vaccine, which is what they said. [00:30:14] Speaker 00: So when, when it comes to a question of who was telling the jury something that would have, you know, go right to the jury's gut or their emotion. [00:30:23] Speaker 00: You know, that was more them saying that their technology might lead to a vaccine than our just saying what we were using our technology for in China. [00:30:31] Speaker 03: But, you know, the bottom line here, of course, is... So when you said in reference to the portability of the MinION, sequencing information generated by one of these has been critical in efforts to develop a vaccine. [00:30:45] Speaker 03: You don't think that was conveying the point, even though you were talking about some set of [00:30:51] Speaker 03: viral problems, Ebola and others, having already mentioned coronavirus? [00:30:57] Speaker 00: I mean, coronavirus and the vaccine for it had already been mentioned by PacBio. [00:31:02] Speaker 00: So could that also be the thinking of the jury with regard to Ebola? [00:31:07] Speaker 00: Sure, both sides had mentioned it, Your Honor. [00:31:09] Speaker 00: So it's a possibility. [00:31:11] Speaker 00: We don't know. [00:31:13] Speaker 00: But what we do know and what the district court pointed out was that this jury was not a jury that came to its verdict. [00:31:21] Speaker 00: by just saying, I want this party to win. [00:31:24] Speaker 00: This is a jury that asked questions about the jury instructions. [00:31:29] Speaker 00: And the jury instructions on infringement, which they found in favor of PacBio. [00:31:34] Speaker 00: This is a jury that made very detailed decisions in its verdict, some going in favor of PacBio, some going in favor of Oxford Nanopore. [00:31:45] Speaker 00: This is a jury that continued to deliberate, even when, you know, [00:31:50] Speaker 00: PacBio is telling us that the jury was completely overwhelmed. [00:31:53] Speaker 00: Well, if that were all true, why did the jury, when the Judge Stark asked them, do you want to go home, they said, no, we don't think we're going to reach a verdict. [00:32:00] Speaker 00: We're going to go home instead of staying late and come back tomorrow morning and keep working. [00:32:07] Speaker 00: This jury wanted to get it right. [00:32:08] Speaker 00: This jury wanted to obey the instructions. [00:32:11] Speaker 00: And I do think it's worthwhile. [00:32:12] Speaker 00: I know you kind of pushed me off this, and I'll be quick with it. [00:32:15] Speaker 00: But this argument that finding enablements [00:32:19] Speaker 00: but not finding written description shows that this jury doesn't know what they were doing. [00:32:24] Speaker 00: Keep in mind, this is an unusual case. [00:32:26] Speaker 00: This is a case where the inventor said he was trying to fool competitors with these applications. [00:32:32] Speaker 00: That's in the appendix on page 1105. [00:32:35] Speaker 00: I wanted to write patents so that my invention could fool competitors. [00:32:40] Speaker 00: This jury had unusual evidence in front of them. [00:32:42] Speaker 00: They could have said, a person with an ordinary skill in the art might have been fooled, might have believed [00:32:49] Speaker 00: that PacBio had possessed the inventions they claimed. [00:32:55] Speaker 00: But that doesn't mean the person with an ordinary skill in the art would actually be able to practice the full scope. [00:33:00] Speaker 00: And the evidence, the uncontested facts, the internal emails, the statements by the inventor on the stand, all of that evidence shows that even if they fooled the people of ordinary skill in the art into thinking that PacBio possessed these inventions, [00:33:16] Speaker 00: They certainly didn't enable those people to practice them themselves. [00:33:20] Speaker 00: Unless there are other questions, sounds like my time is up. [00:33:26] Speaker 02: I hear no other questions. [00:33:28] Speaker 02: Thank you, Mr. Hawes. [00:33:29] Speaker 02: Mr. Reinus will give you your three minutes. [00:33:40] Speaker 02: Mr. Reinus, are you there? [00:33:44] Speaker 04: Yes. [00:33:45] Speaker 04: Thank you, Your Honor. [00:33:46] Speaker 04: Regarding the enablement issue, the attempts to explain away the admission by Dr. Goldman now were not presented any other time before. [00:33:57] Speaker 04: And they're really an attempt to shift the burden. [00:34:00] Speaker 04: The clear and convincing burden was on ONT to come forward. [00:34:04] Speaker 04: And this would be rock bottom and this court sure is prudent if someone that couldn't identify evidence, didn't know what test they applied, didn't consider unpredictability, and had two sentences [00:34:16] Speaker 04: on the topic that were conclusory, that didn't address the amount of experimentation. [00:34:20] Speaker 04: I mean, Judge Elori, your Alcon decision talked about, well, you have to spell out, like, how much it would take to work. [00:34:27] Speaker 04: Nothing. [00:34:28] Speaker 04: So on end, this would be rock bottom of conclusory opinion, even ignoring the flat admission that really shouldn't be ignored for any reason. [00:34:38] Speaker 04: The Atkinson grant, the portions that were identified describe it from 2000 to 2005. [00:34:45] Speaker 04: O&Ts relied on that as prior art in this case, so any denial of that is not fair whatsoever. [00:34:53] Speaker 04: So onto the, whether the entire field of nanopore sequencing was, I don't know what more I can say than there's a body of patents that all claim nanopore sequencing that people admit, claim nanopore sequencing, and their own experts repeatedly admit nanopore sequencing was enabled. [00:35:11] Speaker 04: taking documents like the word fool and using it to wave in front of the jury. [00:35:15] Speaker 04: It's not substantial evidence in the face of that. [00:35:18] Speaker 04: On the prejudicial misconduct issue, the fact is that we lightly mentioned, because we knew they'd be mentioning it, we did not know they would violate the limine. [00:35:32] Speaker 04: And intentionally, and with calculation, state that [00:35:36] Speaker 04: that their product would be excluded at a critical moment when it was going to be able to do all these things, such as the vaccine. [00:35:44] Speaker 04: And, you know, the district court on that issue didn't consider, you know, seemed to impose a requirement of a mistrial request, failed to consider the calculated nature of the admission, failed to consider the closeness of the case, which is described as crucial. [00:36:01] Speaker 04: And, you know, I just, all I can say is, [00:36:05] Speaker 04: to say that it was reasonably probable that the scare story influenced the jury decision, I think, is a relatively straightforward and easy one. [00:36:14] Speaker 01: Thank you very much. [00:36:15] Speaker 01: All right, this is the question. [00:36:16] Speaker 01: Mr. Director, Judge Stoll, I have one question. [00:36:18] Speaker 01: You had said that you were going to give a site to us where you objected during opening argument. [00:36:24] Speaker 01: Do you have a site? [00:36:24] Speaker 04: I did, and I failed to. [00:36:25] Speaker 04: And thank you for the prompt. [00:36:27] Speaker 04: A, 1084 at page 165, 13 through 20. [00:36:32] Speaker 04: I don't think there's any debate. [00:36:33] Speaker 04: It was preserved. [00:36:34] Speaker 04: And in fact, the court found the violation, obviously, is preserved. [00:36:38] Speaker 03: Right. [00:36:38] Speaker 03: And if I read that correctly, there's actually no mention of COVID or coronavirus. [00:36:44] Speaker 03: It's about this exclusion notion in violation of the of the M.I.L. [00:36:50] Speaker 03: generally. [00:36:51] Speaker 03: There wasn't a. Right. [00:36:54] Speaker 04: If our argument isn't clear, I apologize. [00:36:56] Speaker 04: The issue, they didn't violate eliminate by mentioning COVID. [00:36:59] Speaker 04: In fact, no one knew what COVID was when the lemonade were filed. [00:37:02] Speaker 04: That was the exclusion, that was the prejudice of arguing that it was going to be excluded. [00:37:09] Speaker 04: The prejudice of arguing that it was going to be, that their products were going to be excluded was how valuable they were to the COVID. [00:37:17] Speaker 04: So that wasn't the violation. [00:37:20] Speaker 04: That's the magnifier. [00:37:21] Speaker 03: Right. [00:37:21] Speaker 03: The next day when you all came back and Judge Stark, at least as I read the transcript, thought that the other side had [00:37:32] Speaker 03: seriously overstepped and that it was dangerous. [00:37:39] Speaker 03: And then he gave the curative instruction in response. [00:37:44] Speaker 03: So the seriousness of it, I think, was well recognized by the district court. [00:37:54] Speaker 04: All I can say is you look at Draper and the other cases, the vanilla construction, which was all that was possible at that point, given the third rail issue of COVID at the point, which anyone that was there knows what would go on. [00:38:09] Speaker 04: There's no way that prevents this whole fake story from affecting the jury's decision. [00:38:16] Speaker 04: Is it reasonably probable that it influenced the verdict? [00:38:19] Speaker 04: Yeah, for sure. [00:38:22] Speaker 02: Thank you, Mr. Ryder. [00:38:23] Speaker 04: Thank you very much. [00:38:24] Speaker 02: Your argument, we appreciate the arguments of both counsel. [00:38:28] Speaker 02: The case is taken under submission. [00:38:34] Speaker 02: The honorable court is adjourned until tomorrow morning at 10 a.m.