[00:00:00] Speaker 00:
Thank you, Your Honors.

[00:00:04] Speaker 00:
The parties litigated several issues in their final trial briefs in front of the Trademark Trial and Appeal Board, including priority, deceptive use in that Biogram alleged that SunBio improperly used Korean Food and Drug Administration labels on the product included with their specimen, misrepresentation of source in that

[00:00:27] Speaker 00:
in that BioGrand claimed that BioGrand is the only understood source of products marked with PF7, and that by using that trademark, SunBio was misrepresenting the source of their products and various theories of fraud.

[00:00:42] Speaker 00:
However, the only ground ruled upon by the trademark trial and appeal board, that SmartNutri was the true owner of the mark, was not in the initial briefs of either party.

[00:00:51] Speaker 03:
What about appendix page 2301 through 02 and also appendix pages 2328?

[00:00:59] Speaker 03:
In those pages, I see discussion of SmartNutri and how the specimen that the registrant submitted to the USPTO actually had SmartNutri identified.

[00:01:18] Speaker 03:
There's several other statements on these pages,

[00:01:22] Speaker 03:
that referred to that this product was actually made for Smart Nutri.

[00:01:29] Speaker 03:
And Smart Nutri, there was no agreement between Smart, well, that says there's no agreement between Smart Nutri and Respondent, and there was no control on page 2328.

[00:01:45] Speaker 03:
Do you agree?

[00:01:46] Speaker 03:
Why aren't those pages sufficient?

[00:01:48] Speaker 03:
Let me ask you that first.

[00:01:51] Speaker 00:
I believe Your Honor was first citing the background section of the brief, which discussed the general background of SmartNutri and SunBio.

[00:02:00] Speaker 00:
Your Honor, it is our position that simply including a background of the parties is not a sufficient argument of the specific legal theory that SmartNutri was the true owner of the mark and thus the registration is void.

[00:02:17] Speaker 03:
But there are the facts that are necessary for that theory.

[00:02:20] Speaker 03:
And then on page 2328, they specifically say that there was just one sale of the smart memory product made for SmartNutri, a foreign company unrelated to Respondent.

[00:02:33] Speaker 03:
SmartNutri was not a wholly owned subsidiary of Respondent.

[00:02:36] Speaker 03:
Respondent admits there was no agreement with SmartNutri, no license, no assignment or transfer of goodwill.

[00:02:41] Speaker 03:
Respondent not SmartNutri had any control as to the nature or quality of SmartNutri products.

[00:02:47] Speaker 03:
So why isn't that enough to raise the issue?

[00:02:51] Speaker 00:
Your honor, the specific page that you are citing to, I believe 2328, is in a section on an allegation of abandonment.

[00:02:59] Speaker 03:
But could it be, first of all, there's no ownership, and then second of all, even if there was no abandonment, why couldn't this page be read as I've just characterized it?

[00:03:09] Speaker 00:
Because, your honor, it is not appropriate for the board to

[00:03:17] Speaker 00:
inference arguments not made by either party, especially when there is multiple interpretations of the evidence that were utilized.

[00:03:25] Speaker 00:
As stated in the PAB case, which we cited, it is improper for evidence for one argument to be used for another argument that was not raised by the parties.

[00:03:35] Speaker 00:
This is a notice issue, right?

[00:03:37] Speaker 00:
It is.

[00:03:37] Speaker 00:
It's a due process issue.

[00:03:39] Speaker 03:
What would you have done differently, if anything?

[00:03:43] Speaker 00:
Yes, Your Honor.

[00:03:43] Speaker 00:
There is significant

[00:03:46] Speaker 00:
Evidence in the record, specifically in the trial transcript of Mr. Thomas Chang, who is the owner of both SunBio and SmartNutri, that there was an agreement that SmartNutri sold products in Korea and SunBio was the only entity authorized to utilize the trademark BF7 in the United States.

[00:04:05] Speaker 03:
What about all the testimony from Mr. Chang himself?

[00:04:08] Speaker 03:
The only evidence I saw about the relationship between those two companies was the testimony from Mr.

[00:04:13] Speaker 03:
Chang himself saying that he worked really hard to keep those companies separate.

[00:04:18] Speaker 00:
They're separate, Your Honor, but that has nothing to do with who had authorization to use the BF7 mark in the United States.

[00:04:24] Speaker 00:
If they're separate companies, but there was an agreement that only SunBio would use the mark BF7 in the United States, they can still be separate.

[00:04:31] Speaker 00:
But there is an agreement as to utilization of the trademark.

[00:04:33] Speaker 03:
If that evidence is in the record, where is it?

[00:04:37] Speaker 00:
So specifically on appendix page 1949,

[00:04:43] Speaker 00:
there is, and several other places as well, there is testimony from Mr. Chang that only SunBio would use the Mark BF7 in the United States.

[00:04:55] Speaker 03:
Okay, so what part of 1.949 should I be looking at?

[00:05:23] Speaker 00:
So, Your Honor, on page 69 of the transcript, excuse me, Your Honor, page 68, on the bottom starting at line 21, he references he was trying to launch a product in the United States for a product that was marked with BF7, starting on line 21.

[00:05:50] Speaker 03:
What does that have to do with the relationship between these two companies?

[00:05:53] Speaker 00:
that the understanding between his two companies was that Smart Nutri would not utilize the trademark BF7 in Korea, but Sunbio would utilize the trademark BF7 in the United States to sell a product.

[00:06:09] Speaker 00:
And it is our position that if there was an agreement between- So this would have made all the difference right here.

[00:06:14] Speaker 03:
This testimony, which you already had in the record, that's the thing that you would have relied on, that would have

[00:06:22] Speaker 03:
that had you known this was going to be an issue?

[00:06:25] Speaker 00:
So, Your Honor, it is our position that this court has the ability to reverse the decision on due process grounds because those arguments were not raised in the trial briefing.

[00:06:39] Speaker 00:
However, if, to answer your question, if SunBio had the opportunity to address that issue, I would have

[00:06:46] Speaker 00:
pointed to appendix page 1949 to demonstrate the agreement between the parties that SunBio would be the only one that used the Mark BF7 in the United States.

[00:06:56] Speaker 03:
Even though that one specimen, which is the only one that exists, says Smart Nutri on it.

[00:07:03] Speaker 00:
Your Honor, the registration does not just claim finished products.

[00:07:06] Speaker 00:
It also claims powders, gummies, et cetera.

[00:07:08] Speaker 03:
I'm just asking.

[00:07:09] Speaker 03:
I'm asking, am I correct that that's the only specimen that exists

[00:07:14] Speaker 03:
Is that right?

[00:07:16] Speaker 00:
Well, Your Honor, that was the only specimen that was submitted in the registration.

[00:07:18] Speaker 00:
It's not the only good that's been marked with BSF.

[00:07:21] Speaker 03:
And it is marked with SmartNutri, right?

[00:07:23] Speaker 00:
Correct.

[00:07:24] Speaker 00:
The specimen submitted with the registration is marked with SmartNutri.

[00:07:27] Speaker 00:
That's correct.

[00:07:28] Speaker 05:
Can I ask you, as a matter of law, is it your understanding that the TTAB had to conclude that SmartNutri owned the mark, not SunBio?

[00:07:39] Speaker 05:
Or would it have been enough if they concluded SunBio did not own the mark?

[00:07:47] Speaker 00:
It would have been enough if they would have concluded that SunBio did not own the mark.

[00:07:51] Speaker 00:
That is true.

[00:07:52] Speaker 00:
That is the law.

[00:07:53] Speaker 00:
That a registration is void at initio if the applicant does not have either ownership of the mark or permission to register the mark in the United States.

[00:08:02] Speaker 00:
That is true.

[00:08:03] Speaker 05:
And why isn't their decision supported by the idea that, as Judge Stolders pointed out, that there was only one specimen submitted, and SunBio isn't mentioned anywhere on it, but smart nutrient?

[00:08:18] Speaker 05:
Why isn't that sufficient for the PTAB to conclude you haven't established ownership of the mark?

[00:08:23] Speaker 00:
First of all, Your Honor, we have the due process argument that that allegation was not in the briefing.

[00:08:30] Speaker 00:
And second of all, the trademark trial and appeal board did not address evidence in the record that would support the agreement between SmartNutri and SunBio, such that SunBio had permission to register the mark in the United States.

[00:08:46] Speaker 00:
So to clarify,

[00:08:47] Speaker 00:
had the parties address that in briefing and had SunBio had the opportunity to argue that theory of the case and the board had made a decision after that argument.

[00:09:01] Speaker 05:
I thought the board concluded that there was no agreement between these two companies.

[00:09:07] Speaker 00:
The board has discussion on whether or not SunBio controlled use by SmartNutri.

[00:09:14] Speaker 00:
The board did not reach a decision on whether or not there was an agreement in place between SmartNutri and SunBio, such that SunBio can register the mark in the United States.

[00:09:23] Speaker 03:
I have a question for you.

[00:09:25] Speaker 03:
On your blue brief at page 12, you say, in its petition to cancel, Biogran did not specifically argue

[00:09:34] Speaker 03:
that Smart Nutri was the owner, then you say BioGrant asserted that SunBio was not the rightful owner but did not allege that Smart Nutri was the owner.

[00:09:45] Speaker 03:
So if you agree that in the petition BioGrant asserted that SunBio was not the rightful owner, why do we need to go on?

[00:09:52] Speaker 03:
Why isn't that enough to have given you notice?

[00:09:58] Speaker 00:
It is not sufficient to allege in the petition that

[00:10:04] Speaker 00:
someone else is the owner, it has to be briefed as well.

[00:10:06] Speaker 00:
And I would cite NovoSteel for that argument.

[00:10:09] Speaker 00:
And in addition, Your Honor, the argument presented by Biogram was that Biogram was the owner.

[00:10:15] Speaker 00:
It was not that another entity was the owner.

[00:10:19] Speaker 00:
And so again, there was no notice to SunBio that that was an issue of contention in the trial briefing because it was never made.

[00:10:39] Speaker 00:
And so, Your Honors, the first reference to this allegation of ownership by Smart Nutri was not made until the reply briefing, specifically on appendix page 2369, which was two pages of argument within the 68 pages of briefing by Biogram.

[00:11:04] Speaker 00:
And I'm almost at my rebuttal time here, so if there are no further questions, I'll reserve the rest of my time for rebuttal.

[00:11:10] Speaker 05:
Okay, thank you, Mr. Farrell.

[00:11:12] Speaker 05:
We'll hear from Mr. Lee.

[00:11:53] Speaker 02:
Council, are you able to see and hear us?

[00:11:57] Speaker 06:
Yes, I am.

[00:11:57] Speaker 06:
Thank you.

[00:11:57] Speaker 06:
Great.

[00:11:58] Speaker 05:
Thank you.

[00:12:00] Speaker 05:
Mr. Lee, please proceed.

[00:12:02] Speaker 06:
Thank you, Your Honours.

[00:12:04] Speaker 06:
May I please record?

[00:12:05] Speaker 06:
I want to very quickly address one argument that Mr. Farrow has raised and emphasized in his reply brief.

[00:12:14] Speaker 06:
This argument that some bio didn't really have adequate opportunity to respond to biograsp contentions.

[00:12:20] Speaker 06:
First of all,

[00:12:21] Speaker 06:
We disagreed, obviously, with some bios argument that the ownership issue was not raised until the reply reached.

[00:12:29] Speaker 06:
It was made an issue, very clearly, of the cancellation petition, that's Appendix 0039.

[00:12:36] Speaker 06:
We raised the point and the argument and referred to the evidence in the opening brief, Appendix 2302-2303 and 04, Appendix 2329,

[00:12:48] Speaker 03:
Council, what specific language?

[00:12:51] Speaker 03:
I think you were relying on the petition at pages 8, 38, 39.

[00:12:55] Speaker 03:
Which paragraphs are you referring to?

[00:12:57] Speaker 03:
23, 24, or something else?

[00:13:00] Speaker 05:
28, perhaps, Council.

[00:13:02] Speaker 06:
So the cancellation petition, yes, Your Honor.

[00:13:05] Speaker 06:
I'm sorry, Your Honor.

[00:13:06] Speaker 06:
The question is on the 0039.

[00:13:08] Speaker 02:
Thank you.

[00:13:12] Speaker 06:
Yes.

[00:13:13] Speaker 06:
And that fact was acknowledged by TAD in footnote 21, appendix 0012.

[00:13:23] Speaker 06:
Now, having said that, I want to address this argument that even if this point had only been brought up in the required brief, it's not true that some bio had no way to address or seek relief and respond to those arguments.

[00:13:42] Speaker 06:
Sunbio really makes a short strip of the PTAB manual procedure, rule 543, that actually expressly permits litigants in Sunbio's position to file a separate motion for either a reconsideration, a re-hearing, or a modification of the final decision.

[00:14:00] Speaker 06:
And Sunbio is very dismissive of this particular procedure.

[00:14:07] Speaker 06:
And I think he says that

[00:14:10] Speaker 06:
Motions for reconsideration are a waste of time and they're rarely granted.

[00:14:13] Speaker 06:
Well, that's not what the position of PTAB is.

[00:14:20] Speaker 06:
Rule 543 says, there's no requirement that an adverse party file a briefing response for request for re-hearing, I'm sorry, I apologize.

[00:14:54] Speaker 06:
The rule 543 as well as 804 of PCAD basically states that even though the motion for reconsideration is not required for appeal and is obviously discretionary, it's good practice to do so, number one.

[00:15:12] Speaker 06:
Number two, analogizing the motion for reconsideration procedure available before PCAD to motion consideration available in the federal court.

[00:15:21] Speaker 06:
There is plenty of case law, including case law from this

[00:15:24] Speaker 06:
court that states that the purpose for motion for reconsideration is really judicial economy.

[00:15:32] Speaker 06:
So it's not a waste of time, because it does make sense to resolve disputes, procedural disputes of this nature regarding notice, for example, and whether arguments and evidence was properly presented at the court below before the finder of fact, to have those issues resolved before the trial of fact at the court below.

[00:15:54] Speaker 06:
For example, in Delaware Valley Floral Group, Inc.

[00:15:59] Speaker 06:
versus Shaw Rose Metz, 597 F3D 1374 at 1383, that's the Federal Circuit case, 2010, the court points out, this court points out that the three primary grounds that justify reconsideration are, are intervening change in the control of law, the availability of new evidence, and, and this is a key point, the need to correct clear error

[00:16:23] Speaker 06:
or prevent manifest injustice.

[00:16:26] Speaker 06:
In that same case, again, on page 1384, the court says that motions for reconsideration are appropriate where the court has patently misunderstood a party or has made a decision outside the adversarial issue presented to the court by the parties.

[00:16:43] Speaker 06:
That's exactly what some bio is claiming happened here.

[00:16:48] Speaker 06:
And again, there was a clear procedural mechanism available before TTAB that some bio-connect resorted to in order to resolve the situation and introduce additional evidence or additional arguments or raise these very points regarding the jurisdiction of the TTAB to resolve certain addressed issues before the finder of the fact.

[00:17:17] Speaker 05:
Council, you just said that in a reconsideration motion he could have raised new arguments or introduced new evidence.

[00:17:23] Speaker 05:
Is that correct?

[00:17:25] Speaker 06:
Well, let me qualify that.

[00:17:27] Speaker 06:
He could have addressed the arguments raised in the reply brief by Biograd.

[00:17:31] Speaker 06:
Again, we do not concede that point.

[00:17:33] Speaker 04:
However... But in fact, don't the rules expressly prohibit him from trying to introduce new evidence in a reconsideration motion?

[00:17:41] Speaker 06:
You're correct, Your Honor.

[00:17:42] Speaker 06:
But he could have rebutted the arguments made by five randomness reply briefs and pointed to the record before the trial of fact and raised the arguments that he thought that would have addressed the reply brief.

[00:17:56] Speaker 06:
And again, if some bio believed that it was outside the jurisdiction or power of the TTAD to rule or decide on certain issues as he is arguing now, that could have been done and should have been done before TTAD.

[00:18:09] Speaker 06:
And there was, again, there was a mechanism to do so.

[00:18:12] Speaker 01:
So let me ask you, at page 39 of the appendix, we have part of the petition in paragraph 28.

[00:18:21] Speaker 01:
There's been some discussion of it.

[00:18:23] Speaker 01:
Clearly raises the issue of ownership of the mark.

[00:18:28] Speaker 01:
I think Mr. Farrow would agree with that.

[00:18:31] Speaker 01:
But what is your view on the law as to the impact of a statement or a claim in a petition?

[00:18:41] Speaker 01:
Does that carry over throughout the proceedings before the board?

[00:18:45] Speaker 01:
In other words, once you've stated a contention in the petition, such as this, is it there to be argued about, or do you have to say more about it as the proceedings go along?

[00:18:59] Speaker 06:
Well, the petition puts some bio on notice.

[00:19:02] Speaker 06:
And in our trial briefs, Biogram did raise the issue of ownership.

[00:19:10] Speaker 06:
the evidence and the arguments are actually cited by TTAB.

[00:19:14] Speaker 06:
Again, the opening brief on 23.02, appendix 23.02 and 23.03, appendix 23.29.

[00:19:23] Speaker 06:
Mr. Ferrell wants a very, very narrow reading, a broad reading of what the rule requires.

[00:19:34] Speaker 06:
And it seems like, by his standards and by his argument,

[00:19:38] Speaker 06:
a biogram would have to recite line by line each legal argument that he intended to or was intending or trying to raise before the BTAB.

[00:19:50] Speaker 06:
That's just not the case.

[00:19:52] Speaker 06:
It's enough to allege or make sufficient arguments and point to the evidence that puts

[00:19:59] Speaker 06:
a sub bio on notice of the arguments of biograms.

[00:20:04] Speaker 01:
You're saying, excuse me, Mr. Lee, you're saying that in response to my question about the petition making the claim of ownership, the claim with respect to ownership, you say that this was raised specifically in the briefing, your trial briefing at what, 2302?

[00:20:22] Speaker 06:
2302 and 2303, Your Honor.

[00:20:28] Speaker 01:
We're just talking, I mean, I have some of that marked.

[00:20:31] Speaker 01:
And there is a lot of discussion about various items.

[00:20:38] Speaker 01:
But I don't see anything specifically about ownership of the mark, per se.

[00:20:43] Speaker 01:
In other words, picking up the contention that's in the petition.

[00:20:51] Speaker 01:
You're saying it's there by implication?

[00:20:54] Speaker 06:
It's there by implication, as well as

[00:20:58] Speaker 06:
I'm paid on appendix 2329.

[00:21:00] Speaker 06:
I'm sorry, 2329?

[00:21:02] Speaker 06:
2329, last paragraph on that page.

[00:21:12] Speaker 02:
The last full paragraph or just the last paragraph?

[00:21:17] Speaker 06:
That would be the last paragraph.

[00:21:19] Speaker 02:
Where it starts under the Lanham Act?

[00:21:21] Speaker 06:
Yes.

[00:21:22] Speaker 06:
The bone trademark rights of the trademark owner must make a bona fide use of its mark in the ordinary course

[00:21:28] Speaker 06:
Trade bona fide news means genuine news for use in development.

[00:21:31] Speaker 06:
Trade not nominal sale merely to reserve rights for market.

[00:21:37] Speaker 06:
The record is full of evidence indicating that SunBio did not own people.

[00:21:43] Speaker 05:
Council, that's just a statement of what the law is.

[00:21:46] Speaker 05:
How is that an allegation of whether or not they did in fact own the market?

[00:21:53] Speaker 05:
It's just a statement.

[00:21:54] Speaker 05:
Under the Lanham Act, to own trademark rights, a trademark art on most may make a bona fide use.

[00:22:00] Speaker 05:
Where is your conclusion, arguing that they didn't do so here and therefore don't own the mark?

[00:22:09] Speaker 06:
Your Honor, it was sufficient, for abilities purposes, for Biogram to make the argument that ownership required

[00:22:20] Speaker 06:
used by the registrant of the mark, adoption by the registrant of the mark, and to present evidence that supports that.

[00:22:28] Speaker 06:
Where do you say that they didn't do it?

[00:22:35] Speaker 06:
Again, in the opening brief, Appendix 2302, 2303.

[00:22:45] Speaker 06:
Mr. Farrow is very dismissive of those points because it says it appears under the background section.

[00:22:53] Speaker 06:
We don't think that whether arguments and presentation of evidence or submission of evidence appears in a section that's entitled background really should have an effect on the PTAB's ability to

[00:23:08] Speaker 06:
review that evidence.

[00:23:10] Speaker 01:
Mr. Lee, excuse me for interrupting you, but I, you know, sort of time is fleeting and I didn't want to just catch on one point here.

[00:23:18] Speaker 01:
You directed our attention back to 2302 and 2303, and I don't see anything there about ownership.

[00:23:28] Speaker 01:
Is your contention that even though ownership is not specifically stated on those points, that it's kind of a necessary undercurrent to what's being argued?

[00:23:39] Speaker 06:
uh... that's correct uh... the you know it's not state uh... well i don't think that expressed statement of the argument uh... word-by-word is really necessary when the law concerning the ownership of trademark that requires the ownership of the trademark by the registrant uh... is stated in the opening brief

[00:24:04] Speaker 06:
together with all the evidence indicating that all the activities that would have purportedly created ownership rights on the trademark to Sunbile actually was not carried by Sunbile and actually was carried out by a separate party.

[00:24:25] Speaker 03:
What about page 2328?

[00:24:28] Speaker 03:
Are you lying?

[00:24:30] Speaker 03:
I think you cited that in your brief.

[00:24:34] Speaker 03:
as supporting your argument that you were making the ownership argument at least implicitly.

[00:24:39] Speaker 03:
It says, notwithstanding all the facts, assuming you argued that a single token sales smart memory could be attributable to the registrant.

[00:24:49] Speaker 03:
Do you see where I'm talking about?

[00:24:50] Speaker 03:
There's a paragraph above that.

[00:24:52] Speaker 03:
Are you relying on that for your assertion that ownership was before the TTAP?

[00:25:00] Speaker 06:
That will be an additional basis for putting

[00:25:05] Speaker 06:
some by own notice that the ownership issue was being articulated by background.

[00:25:11] Speaker 06:
Yes, Your Honor.

[00:25:12] Speaker 01:
Mr. Lee, let me ask you one further question.

[00:25:14] Speaker 01:
We have here, it's undisputed that the petition raises the issue of ownership.

[00:25:21] Speaker 01:
Let's assume for the moment, this is a hypothetical, but let's assume for the moment that that statement was not in the petition, that paragraph.

[00:25:31] Speaker 01:
Would you then be out of luck?

[00:25:35] Speaker 06:
uh... i don't think that we are a lot i think you'll be compact i don't think that what would you lose on the floor uh... i i i don't think it would have been a lot of indeterminate uh... your honor uh... i think whether the uh... whether it's a lot of uh... notice uh... it really has issued that has to be looked into given the totality of the circumstances and the ttd uh... rules on that issue uh...

[00:26:02] Speaker 06:
I think confirms that.

[00:26:04] Speaker 06:
And the TTAE rule says that if the argument or a legal contention is referred in the opening brief, that's sufficient to settle it.

[00:26:15] Speaker 06:
And I think that's what we've done.

[00:26:20] Speaker 06:
Even if the claim of cancellation based on lack of ownership had not been stated in the petition, there would have been other mechanisms whereby that argument might have been

[00:26:32] Speaker 03:
I'm sorry to interrupt you, but what about page A2369?

[00:26:36] Speaker 03:
I realize that's your reply brief, but are you relying on that at all for raising your ownership issue?

[00:26:44] Speaker 03:
Maybe in the last couple lines there, it says, registrant did not own the mark when the underlying application was filed?

[00:26:54] Speaker 03:
Yes, Your Honor.

[00:26:54] Speaker 06:
I mean, the reality is that the reply brief makes that the ownership argument, I think, brings it in much clearer focus.

[00:27:02] Speaker 06:
And that's correct, Joanna.

[00:27:05] Speaker 05:
Council, if suppose, and I understand these are not the facts of this case, but suppose that you would raise the ownership argument in your petition, but then never mentioned it at all, no words about smart new tree or anything in your entire opening brief.

[00:27:26] Speaker 05:
What then, would it be fair for the trademark office to

[00:27:30] Speaker 05:
or the TTAB to decide the ownership question, even though you had never raised it in your brief, and therefore they didn't address it in their brief.

[00:27:39] Speaker 06:
I think in that case, it would have been proper for TTAB to deem that argument, or the legal claim to be, to have it waived.

[00:27:46] Speaker 06:
And again, there's a TTAB rule that addresses that.

[00:27:51] Speaker 06:
And in fact, we even talked about the necessary threshold.

[00:27:54] Speaker 06:
The necessary threshold is not that this guy has to be a word by word

[00:27:59] Speaker 06:
statement of what each legal theory is, all that it talks about is that the legal claim has to be referred to in the opening brief, and obviously evidence has to be present.

[00:28:12] Speaker 06:
And I think we met that burden, Your Honor.

[00:28:14] Speaker 05:
Okay, thank you, Counsel.

[00:28:15] Speaker 05:
Mr. Farrell has some rebuttal time.

[00:28:58] Speaker 05:
Okay, Mr. Farrell, please proceed.

[00:29:00] Speaker 00:
Yes, thank you.

[00:29:01] Speaker 00:
A few brief points here.

[00:29:05] Speaker 00:
There was some discussion about the implications of not filing a motion for reconsideration.

[00:29:11] Speaker 00:
The parties appear to be in agreement that there is no requirement for filing a request for reconsideration at the TTAB.

[00:29:17] Speaker 00:
I think that's settled law.

[00:29:19] Speaker 00:
And it's also specifically addressed in 37 CFR 2.145A.

[00:29:25] Speaker 00:
and the in Ray Maynard Oil Tools case that were cited in the briefs.

[00:29:30] Speaker 01:
Mr. Farrell, let me ask you one question.

[00:29:31] Speaker 01:
It came up in a combination of your presentation and Mr. Lee's.

[00:29:38] Speaker 01:
At the end of your presentation, in response to a question of mine, you cited to the Nova Steel opinion.

[00:29:44] Speaker 01:
And I've looked at that before, but I'd kind of forgotten.

[00:29:46] Speaker 01:
And then I took a quick look at it again while things were being rearranged.

[00:29:51] Speaker 01:
And I would say that you're on strong grounds on the Novostiil case, with one important exception, though.

[00:30:01] Speaker 01:
Here we do have the statement in the petition, specifically and clearly raising the ownership issue.

[00:30:11] Speaker 01:
And then we have the issue kind of floating through the proceedings, but then as

[00:30:19] Speaker 01:
Judge Stoll pointed out, and Mr. Lee acknowledged, there's a very clear statement about ownership in the reply.

[00:30:30] Speaker 01:
Now, Nova Steel would say, I think, you can't raise something for the first time in a reply.

[00:30:37] Speaker 01:
But here, we have, number one, we have it in the petition, very clearly.

[00:30:42] Speaker 01:
We have this sort of undercurrent, and then we have the reply.

[00:30:46] Speaker 01:
Why does that not

[00:30:48] Speaker 01:
get Mr. Lee over the line in terms of the point being fairly raised.

[00:30:53] Speaker 00:
Your Honor, Novo Steel also explicitly states that waiver is not decided by what's in pleadings, it's decided by what's in the briefing.

[00:31:04] Speaker 00:
That is a clear citation and teaching of the Novo Steel case.

[00:31:10] Speaker 00:
And so our contention would be that it doesn't matter if it was in

[00:31:18] Speaker 00:
the petition for cancellation.

[00:31:20] Speaker 00:
If it wasn't raised in the trial briefing, the argument is waived.

[00:31:24] Speaker 00:
That would be my response to that, Your Honor.

[00:31:26] Speaker 01:
Do the TTAB rules say anything about this?

[00:31:28] Speaker 00:
Yes.

[00:31:29] Speaker 00:
The rules on waiver are, I think, very implicitly usually enforced by the TTAB, and they're happy to get rid of arguments that are not briefed by the parties, even though there's cursory references to them in the petition.

[00:31:51] Speaker 00:
And I would also like to address some of the citations to the Biogram Trial Brief that were discussed between the parties briefly.

[00:32:03] Speaker 00:
So on 2328 in the last paragraph, I think that page was also referenced by the TTAB in their decision.

[00:32:11] Speaker 00:
As the court can see, that is clearly under the heading of abandonment.

[00:32:15] Speaker 00:
It's not under the heading of any allegations of ownership by a third party.

[00:32:21] Speaker 00:
As the court pointed out, it's also a citation to a legal point.

[00:32:27] Speaker 00:
It's not a factual argument.

[00:32:32] Speaker 00:
And likewise, 2329 was also cited by the TTAB.

[00:32:37] Speaker 00:
And that is a section on abandonment by acts or omissions.

[00:32:41] Speaker 00:
And there is no allegation there of ownership by a third party or any party other than BioBrand.

[00:32:49] Speaker 00:
And I thank you, the court, for its time.

[00:32:51] Speaker 05:
Thank you, Mr. Farrell.

[00:32:52] Speaker 05:
This case is taken under submission.