[00:00:00] Speaker 04:
Our next case is Dynax Softcon GmbH versus Agilent Technologies Group 21-1794.

[00:00:09] Speaker 04:
um... council for the appellant mister is buster is that correct yes your honor thank you let me let me um... touch on a couple of administrators have we sorted out who's going to be arguing is that already uh... that's issue taken care of yes your honor I understand you're going to argue uh... for the appellant in both of the cases in the next one as well and mister saganga is going to argue

[00:00:39] Speaker 04:
on behalf of the appellee in both cases.

[00:00:44] Speaker 04:
Is that correct?

[00:00:45] Speaker 04:
Correct, Your Honor.

[00:00:46] Speaker 04:
OK.

[00:00:46] Speaker 04:
And I ask because we were getting motions and, as you know, communications at the late hour yesterday.

[00:00:53] Speaker 04:
But I'm glad to hear that we got everything swirled away as to who's going to be arguing.

[00:00:58] Speaker 04:
The cases are not consolidated.

[00:01:00] Speaker 04:
We're going to take one right after the other.

[00:01:03] Speaker 04:
But I am going to ask that we not repeat arguments to the fullest extent possible.

[00:01:08] Speaker 04:
I'll leave that up to you.

[00:01:09] Speaker 04:
But once we move from one argument to the next, I think that we'd have heard enough to help us do our job, OK?

[00:01:21] Speaker 02:
So, Your Honor, does that mean that I should limit my initial comments to simply the 1794 case?

[00:01:29] Speaker 04:
Yeah, limit the comments to 1794 case.

[00:01:33] Speaker 04:
to the fullest extent possible.

[00:01:36] Speaker 04:
And you've got six minutes reserved for your rebuttal time.

[00:01:41] Speaker 04:
Perhaps we should have consolidated the cases for argument.

[00:01:44] Speaker 04:
I think it would have proceeded a little bit smoothly.

[00:01:48] Speaker 04:
Just in the interest of time, I don't want to hear repeat arguments in the next case.

[00:01:56] Speaker 04:
So you may proceed.

[00:01:58] Speaker 02:
Thank you very much, Your Honor.

[00:02:00] Speaker 02:
I'm James Disfester on behalf of Appellant Dionics and with me at the council table are my colleague Christopher Reed and in-house counsel for Dionics Rip Pinst.

[00:02:11] Speaker 02:
Affirming the board's fine on priority in the 1794 case or, frankly, in the second case that we will address, the 2372 case, would dramatically alter the corroboration requirement.

[00:02:23] Speaker 02:
The count recites an arrangement of hydraulic components that are used to perform a particular method.

[00:02:30] Speaker 02:
the board stated that the key corroborating witness need not remember the hydraulic configuration to provide corroboration.

[00:02:39] Speaker 02:
And indeed, that witness never even knew the hydraulic configuration, nor did that witness know what method had been used, had no personal knowledge of that.

[00:02:50] Speaker 02:
Up to now, this court has required corroborating evidence of the subject matter of the count and has insisted that the evidence of corroboration that

[00:02:58] Speaker 02:
that relied directly or indirectly on the inventor him or herself is legally insufficient.

[00:03:08] Speaker 02:
The evidence that Agilent presented and that the board endorsed fails to meet that standard.

[00:03:16] Speaker 02:
The primary dispute with respect to priority

[00:03:19] Speaker 02:
arises from one aspect of Agilent's reported 2007 reduction to practice.

[00:03:25] Speaker 02:
Did Agilent reduce to practice a system that allowed for pre-compression of the sample loop in this instrument all the way up to the pressure existing on the other side of the injection valve where the column existed?

[00:03:41] Speaker 02:
Or did Agilent simply contemplate

[00:03:44] Speaker 02:
partial pre-compression combined with other techniques such as make before break that would alleviate the pressure shock problem that the inventors were addressing.

[00:03:56] Speaker 02:
This is not a trivial distinction.

[00:04:00] Speaker 02:
As Mr. Nugent testified, Dionics is expert, as of 2007,

[00:04:05] Speaker 02:
There was no metering device, no sample uptake device that was able to create or withstand the high pressures on the column side of the instrument.

[00:04:19] Speaker 03:
We have a couple witnesses that are not Mr. Kratz that testified that Mr. Kratz and Mr. Glatz modified a pump.

[00:04:29] Speaker 03:
So that to be that metering device.

[00:04:33] Speaker 03:
So it was, so the evidence is that according to these witnesses, they didn't just take a conventional metering device that was available at the time.

[00:04:42] Speaker 03:
They custom made a metering device that could handle high pressures.

[00:04:46] Speaker 03:
That's why the schematics refer to a high pressure meter device.

[00:04:50] Speaker 02:
That is correct.

[00:04:52] Speaker 02:
But the medics do not refer to a metering device that is able to reach the same pressure as the column side.

[00:05:03] Speaker 02:
And Mr. Kretz and the other witnesses admitted for Agilent that pre-compression could mean partial pre-compression, which would require some ability to increase the pressure from ambient to

[00:05:18] Speaker 02:
some higher pressure.

[00:05:19] Speaker 02:
We just specifically discussed 200 or 400 atmospheres, pressures that would be far beyond normal and certainly would be high.

[00:05:31] Speaker 02:
So although there is reference in the schematic, and I assume here you're referring to Exhibit 2152, the schematic from November of 2008

[00:05:45] Speaker 02:
that show a high pressure metering device, first of all, as a temporal matter, that schematic is irrelevant.

[00:05:56] Speaker 02:
We know that that schematic was created in a CAD program on November 6th.

[00:05:59] Speaker 01:
It's not per se irrelevant, wasn't it, for the fact finder to make a determination as to whether under the totality of the evidence, what did that document, that schematic, look like at the more relevant time, at the date of priority?

[00:06:14] Speaker 01:
And that's the finding they made, and it comes to us on review of a finding from a fact finder.

[00:06:19] Speaker 01:
Isn't that correct?

[00:06:22] Speaker 01:
I agree.

[00:06:23] Speaker 01:
Because I think I should just make sure I'm not putting the wrong document.

[00:06:27] Speaker 01:
The document was undisputedly created prior to the 2017 date, right?

[00:06:33] Speaker 01:
It was last edited after that date.

[00:06:39] Speaker 02:
Yes, but I think there's an important distinction here.

[00:06:41] Speaker 02:
the document was created earlier.

[00:06:45] Speaker 02:
It was last saved in, I think, the third week of November 2008.

[00:06:48] Speaker 02:
It incorporates a CAD drawing that is unambiguously, undisputedly created on November 6, 2008.

[00:06:59] Speaker 02:
So that document didn't exist before November 6, 2008.

[00:07:05] Speaker 02:
There may have been a document similar to that.

[00:07:09] Speaker 02:
But we don't have that document.

[00:07:11] Speaker 02:
And this is why I think this case is so unusual.

[00:07:17] Speaker 02:
The only way we know that the prototype that was purportedly created in 2007 tracked the design that was shown in the document dated 2008 is Mr. Kretz's testimony.

[00:07:33] Speaker 02:
The other primary witness, Mr. Bowerly,

[00:07:36] Speaker 02:
conceded that A, he was never revealed to him what the hydraulic configuration of the instrument was, the prototype was.

[00:07:44] Speaker 02:
B, he never looked at the specially milled valve that was required in order to effectuate the design shown in 2152.

[00:07:53] Speaker 03:
Mr. Barley did testify that what he did see was a version of exhibit 2152.

[00:08:01] Speaker 03:
And he does remember there being a modified pump that served as the high pressure metering device.

[00:08:06] Speaker 03:
He did see the entire prototype and see it in operation, and then ultimately see over the shoulder of Mr. Kretz a computer screen showing the results of operation of the prototype with minimal pressure spikes, and thereby signaling that, in fact, there was

[00:08:28] Speaker 03:
success in achieving some form of pressure equalization.

[00:08:33] Speaker 03:
So this was all specific testimony that Mr. Barrelly testified to, and as I understand it, the board credited.

[00:08:43] Speaker 03:
Mr. Barrowley's testimony, Mr. Burns' testimony, these exhibits, I mean, when you look at it all together, the board reached a fact finding under the rule of reason that there was adequate corroboration here.

[00:08:58] Speaker 03:
So I'm having a hard time trying to figure out how I would conclude that this was just unreasonable or, as a matter of law,

[00:09:12] Speaker 03:
what is in the record could not possibly satisfy the corroboration requirement.

[00:09:19] Speaker 02:
Your honor, with all respect, I think you're conflating two questions.

[00:09:24] Speaker 02:
Did Mr. Bowerly see exhibit 2152 or a version of 2152 that looks similar to it?

[00:09:30] Speaker 03:
A version of 2152, yeah.

[00:09:33] Speaker 02:
And did Mr. Bowerly see a metering device modified as Mr. Kress testified he modified it?

[00:09:41] Speaker 02:
or an injection valve modified as Mr. Christ suggested he did.

[00:09:47] Speaker 02:
And Mr. Barrowley was absolutely clear.

[00:09:50] Speaker 02:
He did not see either of those devices.

[00:09:55] Speaker 02:
He did not look at them.

[00:09:56] Speaker 02:
To him, the prototype, sitting on the other side of that door 10 yards away from his office, was a black box.

[00:10:04] Speaker 02:
He understood what was in the black box because Mr. Kretz told him, it's something I designed, I built to the design shown in this earlier version of 2152.

[00:10:18] Speaker 03:
And so the only way we know the prototype... Apparently, Mr. Burke, didn't they both testify that Mr. Kretz and Mr. Glatz modified a pump so that it would serve as a high-pressure metering device?

[00:10:34] Speaker 02:
They both testified that they were aware of modification of a pump because Mr. Kretz told them he had done so.

[00:10:46] Speaker 03:
During the relevant time frame, they didn't hear that after the fact from Mr. Kretz.

[00:10:51] Speaker 03:
They heard that during the 2005-2007 time frame.

[00:10:56] Speaker 02:
And in particular, of course, one of the modifications, speaking not to the pump, but rather

[00:11:02] Speaker 02:
to the valve.

[00:11:03] Speaker 02:
That's what Mr. Barley specifically addressed.

[00:11:05] Speaker 02:
He was aware that the valve was specially milled to create elongated grooves.

[00:11:09] Speaker 02:
Now elongated grooves, as we pointed out, are the way you effectuate make before break.

[00:11:16] Speaker 02:
And so that information doesn't confirm

[00:11:21] Speaker 02:
that the pre-compression was happening to the full pre-compression level, it merely confirms that there was work being done to address the pressure shock of some nature possibly made before break.

[00:11:36] Speaker 03:
But what about Mr. Barley's testimony that he saw the test results?

[00:11:41] Speaker 03:
And thank you for bringing that up, Your Honor.

[00:11:43] Speaker 03:
He remarked about how Mr. Kratz was very excited about those test results.

[00:11:49] Speaker 02:
Thank you for raising that because the test results that Mr. Bowerly saw, he concedes, are the pressure readings from the column side.

[00:12:00] Speaker 02:
Now nothing in the count is directed to the pressure on the column side.

[00:12:05] Speaker 02:
The count requires the elevation of the pressure in the sample loop.

[00:12:10] Speaker 02:
Now if Mr. Bowerly saw a pressure plot that showed one atmosphere at the outset,

[00:12:17] Speaker 02:
ambient rising to 600 bar at the completion, that would have been confirmation of actually performing the method of the count.

[00:12:30] Speaker 02:
But that's not what Mr. Barrelly saw.

[00:12:31] Speaker 02:
What Mr. Barrelly saw was the steady pressure on the column side without any indication as to how that steady pressure was created.

[00:12:41] Speaker 02:
Was it created by using a metering device that increased the pressure all the way to the full pressure?

[00:12:47] Speaker 02:
Or was it created by some combination of partial pre-compression with the metering device on the sample loop combined with make before break, which is what the documentary record would seem to reflect?

[00:13:02] Speaker 02:
I see I've gone past the time I reserved for the opening.

[00:13:06] Speaker 02:
I will reserve the rest of my time.

[00:13:09] Speaker 04:
OK, thank you.

[00:13:10] Speaker 04:
Mr. Skanga, did I pronounce your name correctly?

[00:13:14] Speaker 00:
Yes, Your Honor, Skanga.

[00:13:16] Speaker 00:
All right.

[00:13:18] Speaker 00:
Thank you, and good morning, Your Honors.

[00:13:20] Speaker 00:
The Board reached the correct decision in awarding priority to Agilent.

[00:13:25] Speaker 00:
It properly considered that Agilent had the burden only by a preponderance.

[00:13:31] Speaker 00:
There was substantial evidence supporting the conclusion, and thus this Court should affirm that the evidence allows a reasonable conclusion to be drawn.

[00:13:43] Speaker 00:
that satisfies the substantial evidence standard.

[00:13:47] Speaker 00:
And I think Diannex's arguments seem to want to elevate that standard just to say, well, the proof has to be absolutely unrebuttable.

[00:13:58] Speaker 00:
There can't be any countervailing evidence.

[00:14:00] Speaker 00:
And that's not the standard.

[00:14:02] Speaker 00:
It's a rule of reason standard.

[00:14:04] Speaker 00:
on corroboration.

[00:14:05] Speaker 00:
The issue is ultimately the credibility of the inventor.

[00:14:10] Speaker 00:
We're not asking for a new corroboration standard.

[00:14:13] Speaker 00:
The inventor always has to be part of the corroboration analysis.

[00:14:18] Speaker 01:
What is the evidence you have of corroboration that is completely independent of the inventor here?

[00:14:24] Speaker 00:
Well, we do have the documents.

[00:14:27] Speaker 01:
But what the board saw in the documents seems to be ultimately traceable back to what the inventor said one would see in the documents.

[00:14:37] Speaker 01:
Isn't that right?

[00:14:38] Speaker 00:
Well, in addition, we have the metadata showing when the documents were worked on.

[00:14:42] Speaker 00:
That's generated by the computer.

[00:14:44] Speaker 00:
That's not something from the inventor.

[00:14:46] Speaker 00:
We have the non-inventors observing in the machine shop

[00:14:50] Speaker 00:
the prototype running.

[00:14:52] Speaker 00:
We have the test results, which NonAdventure Bowerly saw, and

[00:14:58] Speaker 00:
I think this case is analogous to Cooper v. Goldfarb, where the Gore-Tex invention was at issue, and the inventor Goldfarb was the one who observed the disputed claim limitation.

[00:15:13] Speaker 00:
It was a microscopic measurement of the fibro within the material, and he was the one eyes on the microscope, and the inventor was the one who told the non-inventor witnesses

[00:15:25] Speaker 00:
here's what I found, and the court found that that was sufficient to be corroboration.

[00:15:32] Speaker 00:
So to totally divorce ourselves from the inventor when it is the inventor's work and the timing of it that needs to be corroborated,

[00:15:43] Speaker 00:
gets us perhaps to this impossible standard, which we know from the case law is not what should be applied.

[00:15:50] Speaker 00:
So applying the rule of reason, we have indicia of credibility of the inventor.

[00:15:58] Speaker 00:
He's created contemporaneous documents

[00:16:01] Speaker 00:
We have non-inventors observing his work, remembering specific details about critical components, like converting the high-pressure pump into the high-pressure metering device.

[00:16:12] Speaker 00:
We have the subsequent innovation disclosure form, which corroborates the timeframes here.

[00:16:24] Speaker 00:
The fact that we have multiple non-inventors recalling these events is also part of the totality of circumstances that the board properly considered.

[00:16:37] Speaker 03:
The other side this morning said that the test results that Mr. Bauer witnessed don't actually reflect that he didn't testify to seeing pressure equalization between the sample group and the column.

[00:16:52] Speaker 00:
Well, what the pressure plots represented was whether there were the unwanted spikes in the pressure.

[00:17:02] Speaker 00:
That was the goal of the invention was to avoid spikes which could be damaging to the equipment or flush fluids into the wrong place at the wrong time.

[00:17:12] Speaker 00:
And the plot demonstrated the success of the test in achieving that elimination of the pressure spikes.

[00:17:21] Speaker 03:
What's the plot actually showing?

[00:17:23] Speaker 00:
The plot is showing the pressure on the operating side of the system.

[00:17:29] Speaker 03:
On the column side.

[00:17:30] Speaker 00:
It is the column side pressure, but the witnesses recall is that that was a very meaningful result, right?

[00:17:39] Speaker 00:
A meaningful step forward.

[00:17:41] Speaker 00:
It was memorable.

[00:17:42] Speaker 00:
It was something that the inventor was proud of.

[00:17:46] Speaker 00:
And that demonstrated the proof of concept, because if the pre-compression didn't work, we wouldn't have seen such a nice, flat, even plot.

[00:18:00] Speaker 00:
So that's how it ties back to the pre-compression.

[00:18:06] Speaker 00:
It's because the results were good,

[00:18:08] Speaker 00:
the inventor and the non-inventors are able to recall, yes, I got these very memorable, favorable results.

[00:18:16] Speaker 03:
And I recall the way I got them was by doing the pre-compression, which... Is it true or not true that the only way to get those good results is through pressure equalization?

[00:18:30] Speaker 03:
Or perhaps is there

[00:18:31] Speaker 00:
another way to get

[00:18:40] Speaker 00:
Theoretically, would it be possible to only partially pre-compress?

[00:18:45] Speaker 00:
And if you did that, would you expect that there might be some improvement in the pressure spikes?

[00:18:52] Speaker 00:
And the witnesses said, well, basically could be.

[00:18:55] Speaker 00:
That's a possibility.

[00:18:57] Speaker 03:
I'm hearing this morning that there's a possible other way, which would be partial pre-compression in addition to something called make or break.

[00:19:08] Speaker 00:
Right, and I think that's simply a theory by Dianex, which wasn't backed up by the evidence.

[00:19:14] Speaker 00:
We have the contemporaneous documents referring to the high-pressure metering device and the HP valve, the high-pressure valve, on the same schematic, and the recollection of having to match those because of the environment being more difficult at a high pressure.

[00:19:34] Speaker 00:
What we don't have

[00:19:36] Speaker 00:
is anything referring to a partial pressure.

[00:19:39] Speaker 00:
There's no medium pressure metering devices anywhere in the record.

[00:19:44] Speaker 00:
There's no partial pre-compression referred to anywhere other than as a theory advanced by Dianx.

[00:19:52] Speaker 00:
What I think is important here is that when presented essentially with this theory of, well, could you have

[00:19:59] Speaker 00:
done it a little differently.

[00:20:01] Speaker 00:
Is there some other way that you might have gotten some of this benefit?

[00:20:04] Speaker 00:
None of the witnesses recanted.

[00:20:05] Speaker 00:
None of the witnesses said, oh, now that you mentioned that possibility that we could have done this another way besides fully pre-compressing as in the count.

[00:20:16] Speaker 00:
None of them said, oh, that refreshes my memory.

[00:20:19] Speaker 00:
Yeah, that was what we were doing in that prototype.

[00:20:21] Speaker 00:
And there wasn't even the follow-up kinds of questions like that to say, gee, isn't it possible that that system you remember was doing this alternate approach?

[00:20:37] Speaker 00:
That's why I think there's substantial evidence is that what we have is a theory that wasn't fully born out in cross-examination versus a very robust record showing that there are many different

[00:20:52] Speaker 03:
Was that theory presented to the board?

[00:20:55] Speaker 03:
I'm trying to remember if the board decision... Absolutely.

[00:20:58] Speaker 00:
It was presented to the board, and that's why the board... There was a lot of focus on the word pre-compression.

[00:21:04] Speaker 00:
In those contemporaneous schematics, there was a heading pre-compression.

[00:21:10] Speaker 03:
I understand there was a theory that it was only partial compression.

[00:21:13] Speaker 03:
It wasn't the...

[00:21:15] Speaker 03:
full equalization compression, pressure pressurization, but nevertheless I'm talking about more the idea of perhaps what got Mr. Pratz the good test results was some combination of partial pressurization with something else, some other

[00:21:35] Speaker 03:
contraption that could together get you the nice plot lines.

[00:21:40] Speaker 00:
Well, again, there was no testimony, no evidence that there was an alternate prototype that got good results that used some mix and match of other technologies.

[00:21:54] Speaker 00:
And the reason why I referred to the pre-compression word is because the board looked at that and said, well, okay, by itself that word doesn't necessarily answer the question of was it full

[00:22:04] Speaker 00:
or full pressure equilibration.

[00:22:08] Speaker 00:
And they dug the board, analyzed the record further, and concluded that as a totality, there was support.

[00:22:14] Speaker 00:
But I think, Your Honor, maybe you're referring to the make before break approach that the Dianox Council just mentioned.

[00:22:20] Speaker 00:
And that was an approach that was a precursor.

[00:22:25] Speaker 00:
And it was different because there was no active pressure change in the make before break approach.

[00:22:30] Speaker 00:
The goal of make before break

[00:22:34] Speaker 00:
was simply to change the timing of when the high pressure side and the sample side were in communication with each other and how quickly the transitions were.

[00:22:46] Speaker 00:
from one to the other.

[00:22:48] Speaker 00:
So that was done by modifying that rotary valve device and by modifying grooves in the valve.

[00:22:56] Speaker 00:
But it was a different approach where there was no active increase in the pressure on the sample side.

[00:23:04] Speaker 00:
And again, I'd say it's a theory by Dionics, but there was no actual record evidence that anyone mixed those two together.

[00:23:12] Speaker 00:
Rather, the evidence was the pieces were in place to get to the invention as claimed in the count.

[00:23:20] Speaker 00:
One of those pieces was modifying the rotary valve, changing the shape of the grooves there.

[00:23:27] Speaker 00:
Another piece was getting that high pressure pump modified to work as a high pressure metering device.

[00:23:34] Speaker 00:
And so that's how it was relevant in our view and why that was addressed.

[00:23:43] Speaker 01:
I just want to make sure, sorry, to be clear, the argument we heard this morning, was it argued to the board, this combination of MBB and the partial compression?

[00:23:54] Speaker 00:
I thought that they were somewhat distinct below.

[00:23:57] Speaker 00:
I thought that it was either, hey, you were just working on MBB or you were working on

[00:24:03] Speaker 00:
a partial pre-compression.

[00:24:06] Speaker 01:
I don't think this... The arguments that they were put together and that could have explained the smooth results.

[00:24:12] Speaker 00:
You're not sure if that was actually... And again, I believe the record shows the witnesses believed the good test results were the indication of full pressurization and the count, not of any other possible theory.

[00:24:31] Speaker 00:
I do want to mention the hydraulic configuration issue.

[00:24:38] Speaker 00:
This is another example of a theory that never got fleshed out.

[00:24:43] Speaker 00:
Bauerle said, well, I didn't see the full hydraulic configuration.

[00:24:48] Speaker 00:
He didn't need to look under the hood to see every hose and pipe on the prototype.

[00:24:55] Speaker 00:
And he was never asked, oh, this element of the count, isn't that one of those hydraulic configuration things you didn't know about?

[00:25:03] Speaker 00:
Uh, he wasn't asked that because the count doesn't talk about the invention at that level of detail.

[00:25:10] Speaker 00:
So, uh, he met Mr. Barrelly was consistent in that he understood.

[00:25:16] Speaker 00:
the arrangement.

[00:25:17] Speaker 00:
He had seen versions of the schematic in Exhibit 2152.

[00:25:21] Speaker 00:
He understood that was what the prototype utilized and that the results were positive and a result of having achieved the count.

[00:25:31] Speaker 00:
I want to talk briefly about the depressurizing step.

[00:25:37] Speaker 00:
This is what has been referred to as step 3B1 in the count, because DianX has to win on both of these points.

[00:25:47] Speaker 00:
They have to show that we failed to establish priority, both with respect to 3B2, which is the increasing the pressure on the sample side,

[00:25:58] Speaker 00:
up to the operating pressure.

[00:26:00] Speaker 00:
And they also have to show that we failed to make our case on the deep pressurizing step, this 3B1, and the claim is worded as requiring in the alternative.

[00:26:16] Speaker 00:
one of the following two steps.

[00:26:20] Speaker 00:
Depressurizing, which is bringing the system from operating pressure back down to ambient, which you need to do to cycle through to pick up your next sample.

[00:26:31] Speaker 00:
Or, and I'm quoting from the claim, quote, one of, we go to the depressurizing step and then quote, or the pre-compression step.

[00:26:43] Speaker 00:
And Dianx has simply really skipped over this.

[00:26:50] Speaker 00:
And even with all of these arguments about what might have happened on the pre-compression side, they haven't undercut any of the very robust evidence of record that we did.

[00:27:04] Speaker 00:
meet that alternative depressurizing step with the prototype that was built and did so in the... The board didn't reach that issue though, right?

[00:27:13] Speaker 00:
I'm sorry?

[00:27:14] Speaker 03:
The board did not reach that issue.

[00:27:16] Speaker 00:
Your Honor, no, it was addressed in the judgment and what the board did was it basically said, Agilent, we're going to hold you to your proofs on this.

[00:27:27] Speaker 00:
We argued below that Dionics had essentially conceded the point.

[00:27:31] Speaker 00:
Therefore we went and the board said well, you know I'm gonna we're gonna do more than just simply say It's been waived by Dionics and therefore you win the board went ahead and said Regardless of that we do so the board didn't actually make a finding on that

[00:27:50] Speaker 00:
No, I would characterize it as the other way around.

[00:27:53] Speaker 00:
The board said, we're not going to rule that Dionics waived its opposition to this issue, but upon reviewing the record, we find that you win, Agilent, regardless of what Dionics did.

[00:28:12] Speaker 00:
edulant you you but that's on the pressure equalization step the board didn't say you win also because of the decompression uh... no i i i do believe uh... that it is specifically there's a section in in the judgment specifically talking about uh... that and let me see if i can give your honor a specific quote on that uh... that is uh...

[00:28:40] Speaker 00:
in the first appendix, the judgment at, it's at 72, 73, the appendix 72, pages 72, 73, and the appendix in this first appeal that we're addressing here.

[00:28:59] Speaker 00:
And basically said, whether contested or not, Agilent, you've met your burden here.

[00:29:07] Speaker 00:
And so that, we think,

[00:29:11] Speaker 00:
something that was addressed properly.

[00:29:15] Speaker 00:
Here, I'll read from the top of page 28 to your appendix 73.

[00:29:19] Speaker 00:
To the extent the B1 option is uncontested, our determination that Agilent has proven its alleged reduction of practice of count two would be unchanged.

[00:29:30] Speaker 03:
So we're again... That would be unchanged because it found a reduction of practice for the B2 option.

[00:29:41] Speaker 00:
Well, in the preceding paragraph, it's explaining our argument that we'd satisfied to be one option as well.

[00:29:49] Speaker 03:
OK.

[00:29:50] Speaker 00:
We can figure out how to do it.

[00:29:51] Speaker 00:
That's fine.

[00:29:53] Speaker 04:
Can you conclude, please?

[00:29:55] Speaker 00:
Certainly, Your Honor.

[00:29:56] Speaker 00:
I think that the other issue that wasn't mentioned that I want to just touch on is that the Dionics

[00:30:06] Speaker 00:
felt that the record was so overwhelming against them that they resorted to asking for a negative inference to be drawn against us.

[00:30:14] Speaker 00:
There was just no support for overturning the board's decision on that discretionary decision.

[00:30:21] Speaker 00:
There was no spoliation on the No On Board Act.

[00:30:25] Speaker 00:
Again, I think indicative of the fact that the record was quite robust as is.

[00:30:33] Speaker 04:
Okay.

[00:30:33] Speaker 04:
Thank you.

[00:30:34] Speaker 04:
Thank you.

[00:30:35] Speaker 04:
We have about four minutes left.

[00:30:39] Speaker 02:
Thank you, your honor.

[00:30:39] Speaker 02:
I'd like to begin with that last point, the negative inference.

[00:30:43] Speaker 02:
Please bear in mind that this is an interference.

[00:30:47] Speaker 02:
There's a small amount of automatic discovery provided by section 150 of the

[00:30:53] Speaker 02:
standing in order governing interferences.

[00:30:55] Speaker 02:
Other than that, there's almost no way to get discovery in an interference.

[00:31:02] Speaker 02:
Agilent cherry-picked the evidence it wanted to present.

[00:31:05] Speaker 02:
This was the evidence that best supported its case.

[00:31:09] Speaker 02:
The evidence, for example, of continuing efforts on make before break.

[00:31:14] Speaker 02:
Agilent didn't need to share that with us.

[00:31:16] Speaker 02:
We don't know what that evidence was like.

[00:31:20] Speaker 02:
Speaking of make before break, I'd like to direct the court to a section in the deposition of Mr. Bowerly.

[00:31:30] Speaker 02:
Now, in the 2372 case, it's at appendix 3613.

[00:31:36] Speaker 02:
I will try to dig up the corresponding appendix number in the 1794 case, but the evidence is identical.

[00:31:47] Speaker 02:
Question, and in a make-before-break approach, the pressure in the sample loop is brought up to or approaching the system pressure before the sample loop was connected to the fluid path between the pump and the column, right?

[00:32:00] Speaker 02:
Answer, correct.

[00:32:02] Speaker 02:
So to your earlier question, Judge Chen, make-before-break is absolutely an alternative to full pre-compression if the goal is to bring the sample loop

[00:32:15] Speaker 02:
up to that maximum pressure before connecting up to the pass.

[00:32:20] Speaker 02:
It turns out, at least as reflected by the testing that was done in October of 2008, that it didn't work very well.

[00:32:30] Speaker 02:
There was also some statements from Mr. Schenke that I believe may have overlooked a part of the record.

[00:32:38] Speaker 02:
2152, that exhibit,

[00:32:43] Speaker 02:
Is that about make before break in addition to some form of pre-compression?

[00:32:50] Speaker 02:
And I think the answer to that is definitely yes.

[00:32:55] Speaker 02:
If you look at page 145 of the Kretz deposition that appears at appendix 3437 in the 2372 appeal, and continuing on to the top of page 146,

[00:33:13] Speaker 02:
The question is asked, so 2152 combines a number of ideas, including make before break.

[00:33:22] Speaker 02:
Answer, uh-huh.

[00:33:24] Speaker 02:
The particular idea in 2152 is the elongated groove that comes straight out of Make Before Break.

[00:33:31] Speaker 02:
So we know that 2152 is a combination of both Make Before Break and compression.

[00:33:38] Speaker 02:
What we don't know from any source other than Mr. Krex is that the pressure that was achieved with that pre-compression was in fact equal to

[00:33:53] Speaker 02:
the pressure of the pump.

[00:33:55] Speaker 02:
And as a result, there is no corroboration of a reduction to practice of the count from any source other than Mr. Kretz, the inventor himself.

[00:34:07] Speaker 02:
As a result, affirming the board's finding that there was a corroborated reduction to practice would substantially change

[00:34:20] Speaker 02:
150 years of legal jurisprudence regarding the corroboration requirement.

[00:34:27] Speaker 04:
Thank you.