[00:00:00] Speaker 02: Our next case is University of Strathclyde versus Clearview Lighting, LLC, case number 20-2243. [00:00:08] Speaker 02: Mr. Bradley, are you ready to proceed? [00:00:11] Speaker 03: This is Mr. Kelly, Your Honor. [00:00:16] Speaker 02: Mr. Kelly, okay. [00:00:18] Speaker 02: Mr. Kelly, you may proceed, sir. [00:00:21] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:23] Speaker 03: The claims in this case are directed to inactivating certain bacteria using specific wavelengths of light. [00:00:29] Speaker 03: and doing so without using a photosensitizer. [00:00:33] Speaker 03: And yet, the board invalidated those claims by combining two references that always use the photosensitizer to inactivate bacteria. [00:00:42] Speaker 03: And in fact, one of the best. [00:00:44] Speaker 00: Yes? [00:00:45] Speaker 00: This is Judge Stoll. [00:00:45] Speaker 00: I just want to jump in and ask you a question. [00:00:48] Speaker 00: I'm trying to make sure I understand what the board found here with respect to what the part art teaches. [00:00:55] Speaker 00: I think Ashkenazi, sorry. [00:00:58] Speaker 00: Ashkenazi teaches exposing bacteria to light without ALA. [00:01:04] Speaker 00: And so I think what the board said is that a person with ordinary scaling art would have been motivated to expose the bacteria, nitsin, to light without ALA. [00:01:16] Speaker 00: And that because of that, this would result in the claims invention. [00:01:20] Speaker 00: I guess the idea that you would use nitsin without ALA and somehow presume that there would be inactivation of the mosa. [00:01:28] Speaker 00: Do I understand that to be, whether it's right or wrong, I just want to first make sure I understand what your understanding is of the board's holding here on how these two prior references combined to somehow teach these claim limitations. [00:01:46] Speaker 03: Sure. [00:01:47] Speaker 03: So it's slightly more nuanced than that, Judge Stoll. [00:01:49] Speaker 03: So in Ashkenazi, you're correct that in some cases they use the photosynthesizer ALA. [00:01:54] Speaker 03: But it's also the case that they always used another photosensitizer, riboslaven. [00:02:00] Speaker 03: So there's no, and there's no dispute about that. [00:02:02] Speaker 03: The board recognized that in its decision. [00:02:04] Speaker 03: So in Ashkenazi, in every single example, a photosensitizer was used. [00:02:10] Speaker 00: Yes, I understand that. [00:02:13] Speaker 03: Okay, and then when they take that method and they apply it to the bacteria in Nitsen, which is MRSA, they did so in a way that eliminated all of the photosensitizers from the method. [00:02:25] Speaker 00: So they started with... Because Nixon doesn't have riboflavin, right? [00:02:29] Speaker 00: So they say because Ashkenazi was able to remove the ALA and it still had riboflavin, one of Ordinary Scale in the Art would think somehow you could remove the ALA from Nixon and somehow achieve the inactivation recorded by the claim, right? [00:02:47] Speaker 03: That's right. [00:02:47] Speaker 03: And the fundamental problem with the board's decision is that they removed all of the photosensitizers from the method. [00:02:54] Speaker 03: and they assumed it would work, and then they pointed back to the results in Ashkenazi as evidence of that, even though all of those results were generated using a photosensitizer. [00:03:04] Speaker 03: So, in effect, they used the method for one reference, applied it to the MRSA bacteria in the second reference, and then in invalidating the claims, they did so in a way that eliminated all of the photosensitizers from Ashkenazi's method. [00:03:19] Speaker 03: But they still relied on Ashkenazi's reported results, even though those results were only achieved using a photosensitizer. [00:03:26] Speaker 03: They had no evidence and certainly not substantial evidence to support that finding. [00:03:32] Speaker 03: And neither of the references the board relied on were able to inactivate any bacteria without using a photosensitizer. [00:03:40] Speaker 03: So there's no evidence anywhere in the record of the bacteria in the claims ever being inactivated without using a photosensitizer. [00:03:49] Speaker 03: And if you look at the case from the perspective of a person of ordinary skill, the two references actually would have reinforced that a photosensitizer is needed for an activation. [00:03:59] Speaker 03: So you've got the first reference Ashkenazi, where the... Can we go back to where we were with... Judge Clemen, you're breaking up really bad. [00:04:16] Speaker 02: Can you hear me now? [00:04:18] Speaker 02: A little bit better, yes, sir. [00:04:20] Speaker 04: Yeah. [00:04:21] Speaker 04: The parties agree that mersin is a gram-positive bacteria that naturally produces the porphyrins. [00:04:30] Speaker 04: And from there, oh. [00:04:37] Speaker 02: We can't hear you, Judge Clemenger. [00:04:39] Speaker 04: Release radicals. [00:04:41] Speaker 04: Oh, do you agree that the porphyrin release the radicals when exposed to light? [00:04:49] Speaker 04: MSRA, MRSA, MRSA? [00:04:53] Speaker 03: Yes, so you broke up a little bit, Judge Clevenger, but if I understand your question correctly, it's would there have been porphyrins present in MRSA and would they have released the radicals? [00:05:03] Speaker 03: And the answer to that question is yes. [00:05:06] Speaker 03: And in fact, Nixon shows that MRSA exposed to light without using a photosensitizer does not respond at all. [00:05:13] Speaker 03: So there's no dispute that the immersive bacteria tested in Nixon would have had those porphyrins in it, and they probably would have released some radicals. [00:05:21] Speaker 03: The parties agree on that. [00:05:22] Speaker 03: But Nixon himself confirmed that it's not simply a matter of having some amount of porphyrins present in the bacteria, because that bacteria showed no response when they tested it. [00:05:33] Speaker 04: And again, if you can hear me, I'm looking at the party. [00:05:40] Speaker 04: the sentence in the middle of that page, and what you seem to be saying is that that is central to the board's reasoning. [00:05:47] Speaker 04: There's no substantial evidence to support the statement. [00:05:52] Speaker 03: I'm sorry, which part of the record are you referring to? [00:05:55] Speaker 04: I couldn't quite hear you. [00:05:57] Speaker 04: It's page 44-0. [00:05:58] Speaker 03: It's right in the middle of the page that the sentence starts, and the former person's limited life release and death. [00:06:14] Speaker 00: Judge Cleveringer, can you try again, because it's hard to hear you. [00:06:18] Speaker 04: OK, well, maybe you can see what I'm talking about at page A40. [00:06:23] Speaker 00: I can hear you now. [00:06:24] Speaker 04: Go ahead. [00:06:26] Speaker 04: Yeah, and it seems to me that that's the crux of the case. [00:06:29] Speaker 04: If that is a correct statement of fact, then maybe there's something to the board's decision. [00:06:36] Speaker 03: So Judge Cleveringer, the statement the board makes, that the porphyrin's wind illuminated with light, [00:06:42] Speaker 03: damage or kill the bacteria is demonstrably false. [00:06:46] Speaker 03: Because in Nixon, you've got those porphyrins in the bacteria, and they exposed it to light, and nothing happened. [00:06:56] Speaker 04: What I'm trying to get at, sir, is doesn't the fact you say that that is incorrect, doesn't that undermine the board's entire rationale? [00:07:07] Speaker 03: It does, Your Honor, because they're using that in combination with the only other evidence available for them. [00:07:13] Speaker 04: They're saying if there's a little bit of inactivation, then you simply expose it to more light for longer periods of time and, and, Hosanna, you have the result. [00:07:23] Speaker 04: So it seemed to me that if that fact finding is incorrect, the board is wrong. [00:07:29] Speaker 03: Right, and it's incorrect to the extent that it's not simply a matter of having some porphyrins in the bacteria and then knowing that those will lead to inactivation because Nixon shows us that it's not that simple. [00:07:43] Speaker 03: And this is sort of, it's confounding a little bit because in the board's anticipation analysis, Clearview argued that Nixon anticipated the claims. [00:07:53] Speaker 03: And the board found that Nixon showed no inactivation. [00:07:56] Speaker 03: So you've got a finding from the board that there's no inactivation. [00:08:01] Speaker 00: Go ahead. [00:08:02] Speaker 00: You can finish your sentence, and then I want to ask you a question. [00:08:04] Speaker 00: Go ahead. [00:08:05] Speaker 03: Sure. [00:08:06] Speaker 03: I just want to make a point that the board makes a finding that Nixon shows no inactivation. [00:08:11] Speaker 03: And then they hypothesize that the presence of some porphyrins in MRSA necessarily means it will be inactivated by light. [00:08:17] Speaker 03: But in Nixon, you had no inactivation at all. [00:08:20] Speaker 00: And I just want to ask you one thing, which is my understanding is that Nixon does [00:08:27] Speaker 00: meet the claim limitations including, you know, how the visible light is applied at wavelengths and the range of 400 to 420. [00:08:38] Speaker 00: But what's missing there and very clearly missing is the inactivation because Nixon expressly says that there was no inactivation, right? [00:08:49] Speaker 00: That's exactly right, your honor. [00:08:53] Speaker 00: And do you have expert testimony? [00:08:56] Speaker 00: My understanding is that you have some expert testimony as well that supports this understanding. [00:09:05] Speaker 00: I think it's at page A2132, and it supports this reading and understanding of the prior art. [00:09:14] Speaker 03: That's correct, Your Honor, and I'll find that part of the record. [00:09:18] Speaker 00: That's all right. [00:09:18] Speaker 00: I'll probably ask your opposing counsel about that. [00:09:23] Speaker 03: I would note another statement, Your Honor, on the very next page, A2133, where our expert concludes looking at data from an earlier Nixon study, too, which shows that MRSA doesn't respond as the light dose increases. [00:09:37] Speaker 03: And he said to a person of ordinary skill, the data in the reference would have indicated that the response of MRSA without ALA to blue light, even at the higher doses than Ashkenazi, would have been the same. [00:09:48] Speaker 03: No bacteria would have been killed. [00:09:50] Speaker 03: So there's clear testimony from our expert on that point. [00:09:56] Speaker 03: And I think when you look back at the two references and you look at it from the perspective of person of ordinary skill, they would have seen these two references. [00:10:05] Speaker 03: They would have seen that both references always used a photosensitizer to inactivate bacteria. [00:10:11] Speaker 03: They would have seen that the MRSA exposed to light in Nixon without using a photosensitizer showed no response. [00:10:18] Speaker 03: And there was no single example in any of the references of the bacteria being inactivated without using a photosensitizer. [00:10:25] Speaker 03: And so at the time of the invention, this would have only reinforced that a photosensitizer was needed, which is the opposite of what the claims require. [00:10:34] Speaker 03: And Clearview did not cite any evidence in their briefs to the board of MRSA ever being inactivated without using a photosensitizer. [00:10:41] Speaker 03: They didn't cite any evidence in their brief to this court and they will not today point you to any evidence of MRSA ever being inactivated without using a photosensitizer. [00:10:50] Speaker 03: And there was simply no evidence and certainly not substantial evidence for the board rely on to support its findings. [00:10:59] Speaker 03: If there are no further questions, I'll reserve the rest of my time for rebuttal. [00:11:03] Speaker 02: Okay, thank you. [00:11:08] Speaker 02: Mr. Patel? [00:11:10] Speaker 01: This is Mr. Emfinger. [00:11:12] Speaker 02: OK. [00:11:14] Speaker 02: You may proceed. [00:11:16] Speaker 01: Thank you, and may it please the court. [00:11:18] Speaker 01: Brian M. Finger with Banner and Wittkopf on behalf of Clearview Lighting. [00:11:22] Speaker 01: One of the issues on appeal here is reasonable expectation of success. [00:11:25] Speaker 01: So that's where I'd like to begin. [00:11:27] Speaker 01: Substantial evidence supports the board's correct conclusion that one of ordinary skill would have reasonably expected success in combining Askenazi's and Nissan's teachings to inactivate MRSA in the absence of a photosensitizer using a sufficient dose of blue light. [00:11:42] Speaker 01: and three fully supported and undisputable facts support this conclusion. [00:11:46] Speaker 01: First, MRSA naturally produces porphyrins on its own without any external assistance. [00:11:52] Speaker 01: Second, those porphyrins release oxygen radicals that when exposed to blue, release oxygen radicals when exposed to blue light. [00:11:59] Speaker 01: And third, the released oxygen radicals cause damage to the bacteria cell membrane, which can lead to cell death. [00:12:06] Speaker 00: And these facts are undisputed. [00:12:08] Speaker 00: This is, this is Judge Stoll. [00:12:09] Speaker 00: I have a quick question for you. [00:12:11] Speaker 00: I was looking at the testimony of Dr. Goodrich at pages A21, 32 through 33, which includes testimony about how APOZA, looking at Nixon's 1999 data, would clearly have expected the curve, the LA absent bacteria data to remain flat as the dosage increased to 75. [00:12:35] Speaker 00: Do you have any expert testimony rebutting that? [00:12:42] Speaker 01: So I'm not sure there's specific expert testimony to rebut that, Your Honor, but I will point out the board determined that any conclusions to be drawn from those results should be limited. [00:12:59] Speaker 01: And the limited data from those trials did not outweigh the other evidence that was presented that supported them. [00:13:06] Speaker 00: What evidence did the board rely on for that fact finding? [00:13:11] Speaker 01: of a reasonable expectation of success? [00:13:14] Speaker 00: Yeah, you said that the board said that that data should be limited, not withstanding expert testimony that's unrebutted saying otherwise. [00:13:22] Speaker 00: I want to know what evidence the board relied on for that fact finding you're referring to. [00:13:29] Speaker 01: Yes, Your Honor. [00:13:38] Speaker 01: So I can point you to, [00:13:44] Speaker 01: Give me one moment here. [00:13:46] Speaker 04: Which fact-finding are we looking at, just for clarity? [00:13:54] Speaker 01: So I think Judge Stoll was referring to the fact-finding of Dr. Goodrich's testimony that if you increase the dose of life in the NEETSUN 99 trial, that the line would remain flat. [00:14:09] Speaker 01: But I'll point you to the board's [00:14:11] Speaker 01: remarks on page 44 of the appendix, where they note that Dr. Goodrich states the response of MRSA without ALA to the blue light at the higher light dose would have been the same at the 50 joules per square centimeter light dose, that no bacteria would have been killed. [00:14:30] Speaker 01: But they note that Dr. Goodrich failed to provide any underlying facts that formed the basis for that opinion and determined that it's entitled to little or no weight. [00:14:40] Speaker 00: So, in other words, that's a legal conclusion that his testimony can be disregarded. [00:14:45] Speaker 00: Is that how you would characterize that? [00:14:48] Speaker 01: Yes, Your Honor. [00:14:50] Speaker 01: Okay. [00:14:53] Speaker 01: But getting back to my main point about the police afforded... And I'm correct, though. [00:14:58] Speaker 00: Can I interrupt you for a minute that factually there's nothing rebutting what he's saying here? [00:15:02] Speaker 00: You have no expert testimony rebutting his, Dr. Goodrich's testimony here, right? [00:15:09] Speaker 01: No expert testimony, but I will point out, if you look at the Nissan 1999 reference, they used the same relatively low dose of light that was used in Nissan. [00:15:21] Speaker 01: But the argument that relies on this Nissan 1999 study points out or, excuse me, ignores the fact that Nissan explicitly lists its conclusion that [00:15:39] Speaker 01: its conclusions, excuse me, let me back up. [00:15:45] Speaker 01: I think one of the things that we would want to point out about the NEETSA 99 study is that the relevance of the results, it should be limited in this case because they actually used a broader wavelength range than what was used in the NEETSA study. [00:16:00] Speaker 01: In NEETSA 99, they used a wavelength range of 400 to 450 nanometers instead of [00:16:06] Speaker 01: the more narrow 407 to 420 nanometers that was used in Nitzan. [00:16:11] Speaker 00: Okay, can I ask you about something else? [00:16:13] Speaker 00: On your red brief, in talking about, you know, that a poser would have understood that the proposed combination of Nitzan in view of Ashkenazi would teach inactivation of bacteria even without ALA or any other photosensitizer, [00:16:35] Speaker 00: You have a statement in your brief that says, it defies logic to conclude that inactivating MRSA by applying Ashkenazi's technique, Technician's MRSA would not result in inactivating MRSA when the patentee obtained the very result using the same technique. [00:16:55] Speaker 00: How is that not hindsight? [00:16:57] Speaker 00: How can you point to the patent and what the patentee did as supporting an obvious combination? [00:17:05] Speaker 00: That seems quintessential hindsight to me. [00:17:08] Speaker 00: Please explain to me why I'm wrong. [00:17:11] Speaker 01: Sure. [00:17:11] Speaker 01: So I'll note that the board didn't rely on the patent itself for evidence of obviousness and... I'm asking about your brief. [00:17:18] Speaker 00: This is a statement in your brief. [00:17:22] Speaker 01: Right. [00:17:22] Speaker 01: So we're not relying on anything from the patents to fill any gaps in the prior art. [00:17:27] Speaker 00: The patent really was just... Then why did you put this in your brief? [00:17:31] Speaker 01: Well, we put it in the brief because the patent is really just confirming what the natural phenomenon or the natural result would be to. [00:17:39] Speaker 00: Is it proper for me to rely on what the patent says in my obviousness analysis? [00:17:45] Speaker 01: Well, I think if the patent makes certain admissions about the state of the art or what would be expected. [00:17:53] Speaker 00: So you don't think this is hindsight? [00:17:55] Speaker 00: Do you think this is hindsight in your brief or not? [00:17:58] Speaker 01: No, absolutely not. [00:18:00] Speaker 00: And why not? [00:18:01] Speaker 00: Do you think it's perfectly proper for me to rely on this, to rely that the patentee obtained that very same result, even though there's two references from Nixon that would suggest that where they tried to light activate MRSA without a photosensitizer and failed? [00:18:21] Speaker 01: Well, I wouldn't characterize it as a complete failure in Nissan. [00:18:26] Speaker 01: And the reason was because, if the board correctly recognized [00:18:30] Speaker 01: The purpose of that non-ALA trial in NIPSON was to determine whether external porphyrins outside of the bacterial cells contributed to the photoinactivation. [00:18:40] Speaker 01: And the board also correctly recognized that any conclusions from this one trial should be limited because NIPSON did not expose the MRSA to more than a single dose of light for any higher light doses and did not investigate the effect of incubation time on inactivation. [00:18:56] Speaker 01: And the board cited to Askinazi's teachings that these factors, when increased, [00:19:01] Speaker 01: can increase the level of inactivation. [00:19:04] Speaker 04: Mr. Mfinger, can you hear me? [00:19:09] Speaker 01: Yes, I can hear you. [00:19:10] Speaker 04: OK. [00:19:11] Speaker 04: You started your argument by saying that MRSA releases oxygen molecules that result in inactivation when subjected to light. [00:19:24] Speaker 04: And you're channeling what the board said at page A40 [00:19:29] Speaker 04: that we discussed with your adversary. [00:19:31] Speaker 04: And I'm just asking you, where is there evidence in the record that MRSA, that the oxygen that releases will inactivate, if not enhanced with a photosensitizer? [00:19:48] Speaker 01: Sure. [00:19:48] Speaker 01: So the evidence that MRSA would be inactivated can be found first in Ashkenazi's teaching. [00:19:54] Speaker 01: that bacterial cells that produce porphyrins may be inactivated by the internal porphyrins when exposed to a sufficient dose of blue light. [00:20:02] Speaker 04: And then in conjunction... So wait, just stop, stop right there. [00:20:05] Speaker 04: May or may not. [00:20:08] Speaker 04: So it doesn't say they always do. [00:20:10] Speaker 04: Excuse me, excuse me. [00:20:12] Speaker 04: It doesn't say they always do. [00:20:13] Speaker 04: So I saw that what other reference than that in the record supports the notion that MRSA unaided [00:20:22] Speaker 04: that it naturally will inactivate after showing light. [00:20:28] Speaker 01: So in addition to Ashkenazi's teaching, there's the undisputed knowledge that MRSA produces and accumulates perfilins. [00:20:36] Speaker 01: And I think it's also important to appreciate. [00:20:39] Speaker 04: Yeah, but you're not answering my question. [00:20:41] Speaker 04: We know that. [00:20:43] Speaker 04: That's admitted. [00:20:45] Speaker 04: What we don't know is what naturally occurring [00:20:50] Speaker 04: MRSA does when exposed to light. [00:20:52] Speaker 04: You say it results in inactivation. [00:20:56] Speaker 04: I'm simply asking you to show me in the record somebody who agrees with you on that point. [00:21:03] Speaker 01: So I think our argument, Your Honor, is that there would have been a reasonable expectation of success. [00:21:09] Speaker 04: I'm not asking you that question. [00:21:11] Speaker 04: Are you admitting that there's no evidence in the record that shows for sure [00:21:19] Speaker 04: that there is inactivation when you expose natural MRSA to light. [00:21:23] Speaker 01: So we don't dispute that the references do not individually disclose the inactivation of MRSA in the absence of a photosensitizer. [00:21:33] Speaker 01: But I think that argument fails to appreciate that conclusion. [00:21:37] Speaker 04: You're agreeing that there's nothing in the record that shows that exposing light, exposing natural MRSA to light, could lead to inactivation, right? [00:21:50] Speaker 01: Correct. [00:21:50] Speaker 01: We do not dispute that the references individually disclose successful inactivation of MRSA in the absence of a photosensitizer. [00:22:01] Speaker 04: So your argument has to be that since we know that if you fiddle around with the length of time at which MRSA might be exposed, or you fiddle around with the amount of light, you might be able to wake up [00:22:19] Speaker 04: oxygen radicals to do the work, right? [00:22:24] Speaker 01: That's correct, Your Honor. [00:22:25] Speaker 04: And I'll point out that the way that that's... So you're saying the fact that additional multiplication of exposures or longer exposures in time has worked on some bacteria to wildly increase inactivation. [00:22:44] Speaker 04: We should expect that same thing to happen with MRSA. [00:22:48] Speaker 01: That's correct, Your Honor. [00:22:50] Speaker 04: Simply because it has a low level of porphyrins and therefore a low level of oxygen that could produce the radicals? [00:22:59] Speaker 01: Correct, Your Honor, especially given the fact that the board correctly recognized that the amount of porphyrins in the bacteria is not important in the context of these claims. [00:23:09] Speaker 01: And that's because the claims don't require any amount of porphyrins and the specification provides no teaching. [00:23:15] Speaker 01: that some minimum amount of porphyrins are necessary to achieve inactivation. [00:23:19] Speaker 01: In fact, the specification doesn't even acknowledge that porphyrin, doesn't even acknowledge porphyrins or their role in the inactivation process. [00:23:28] Speaker 04: So that's what you were saying in your brief in essence. [00:23:31] Speaker 04: It's just a matter of common sense that if you have a bacteria that has porphyrin in it, there was a question pending when we paused. [00:23:42] Speaker 04: No, it's Judge Clevenger. [00:23:43] Speaker 04: We had just finished the discussion, and I'd asked you whether, in essence, you're not just saying that it's a matter of common sense that MRSA, if exposed to light, would have some inactivation. [00:23:54] Speaker 04: And you agreed? [00:23:56] Speaker 01: Correct, Your Honor. [00:23:57] Speaker 01: And I think with my remaining time, I'd like to point out that what this appeal really boils down to is what was the reasonably expected result of exposing MRSA to blue light in the absence of a photosensitizer using parameters that were known to have an impact on the level of inactivation [00:24:12] Speaker 01: and knowing that MRSA produces profirins. [00:24:14] Speaker 01: And one particular point I want to make is just it's important to appreciate how low the bar is here for an expectation of success. [00:24:22] Speaker 01: And the board properly recognized that expectation of success must be framed in the context of the patent's definition of an activation. [00:24:29] Speaker 01: And it defines an activation to mean that bacteria are killed or damaged so as to reduce or inhibit its replication. [00:24:36] Speaker 01: And that result is much more modest than what the prior researchers were looking into. [00:24:40] Speaker 01: In Ashkenazi and Nitzan, the researchers were concerned with the eradication of their respective bacteria. [00:24:45] Speaker 01: In other words, the total destruction of the bacteria. [00:24:49] Speaker 01: But here, the claims do not require total eradication. [00:24:52] Speaker 01: And the patent's definition of an activation is satisfied by much more modest results, which frame the expectation that needs to be shown for obviousness. [00:25:00] Speaker 01: And so I think on the basis of this evidence, the board correctly found [00:25:07] Speaker 01: that one of ordinary skill would have had a reasonable expectation of success in meeting all claim limitations. [00:25:12] Speaker 01: And I would direct your attention to page 39 of the appendix where the board does a pretty good job of explaining why inactivation of MRSA in the absence of a photosensitizer would have been the expected result. [00:25:27] Speaker 01: So we would ask the court to affirm the bird's conclusion that the challenge claims are obvious. [00:25:32] Speaker 01: So if there are no more questions, [00:25:36] Speaker 01: I thank you, Your Honor, for your time. [00:25:38] Speaker 02: Thank you, Mr. Amfinger. [00:25:40] Speaker 02: Mr. Kelly. [00:25:43] Speaker 03: Thank you, Your Honor. [00:25:45] Speaker 03: I start just by saying that Nixon shows the opposite of what Clearview's counsel is suggesting to you. [00:25:50] Speaker 03: So the notion that the presence of some poor [00:25:54] Speaker 03: necessarily sufficient to cause inactivation is, NITSIN shows the opposite of that. [00:25:59] Speaker 03: There were porphyrins in the MRSA bacteria that NITSIN tested, and when they didn't use a photosynthetizer, there was no response whatsoever. [00:26:08] Speaker 03: And Judge Clevinger, you asked a question about, you know, was there any evidence of the bacteria waking up at some type of dosage? [00:26:15] Speaker 03: And the answer to that question is no. [00:26:18] Speaker 03: In Ashkenazi and in the NITSIN 99 paper, [00:26:21] Speaker 03: Every single example, the bacteria responded to light even at the lowest doses. [00:26:27] Speaker 03: So there's absolutely no example of a bacteria showing no response to light at some dose and suddenly waking up at a higher dose. [00:26:34] Speaker 03: There's not a single example of that, not for MRSA and not for any other bacteria anywhere in the record. [00:26:41] Speaker 03: And you can actually see that, as Judge stole in the diagram that you pointed out at APPX 2133, the bottom lines there, [00:26:50] Speaker 03: show what happens when MRSA has more porphyrins in it because they've been induced using a photosensitizer. [00:26:55] Speaker 03: And you'll see there, even at the lowest tested light dose, 10 joules per centimeter squared, you get some degree of inactivation. [00:27:02] Speaker 03: So the references to a person of ordinary skill would have only reinforced that you need porphyrins for inactivation. [00:27:09] Speaker 03: And for bacteria like MRSA, you need a photosensitizer to generate those porphyrins. [00:27:14] Speaker 03: That's the clear taking that a person of ordinary skill would have gotten from the references [00:27:19] Speaker 03: at the time of the invention. [00:27:21] Speaker 03: Nixon shows the opposite of what Clearview is arguing. [00:27:24] Speaker 03: And again, they didn't cite any evidence in their briefs to you, and they didn't point you to any evidence today of MRSA ever being inactivated without using a photosensitizer. [00:27:35] Speaker 03: And without that evidence, the board's decision has to be reversed. [00:27:40] Speaker 03: I'm happy to entertain any questions if there are. [00:27:44] Speaker 02: Okay, we thank you, Mr. Keller, for your argument. [00:27:46] Speaker 02: We thank all parties for their arguments this morning. [00:27:49] Speaker 02: That concludes this morning's oral arguments. [00:27:52] Speaker 02: This court now stands in recess. [00:27:56] Speaker 03: The honorable court is adjourned until tomorrow morning at 10 a.m.