[00:00:00] Speaker 00:
And in this case, under the proper standard, the board erred by disregarding a disclosure from the prior ART TATA reference, an examined, issued, and corrected United States patent.

[00:00:13] Speaker 00:
Everyone agrees that the lens from TATA's embodiment three, based on data from TATA's table five, both works as a functional, albeit imperfect, lens and practices the three zone limitation of the 990 patent.

[00:00:28] Speaker 00:
The board nonetheless disregarded Tata's teaching of the three zone limitation.

[00:00:33] Speaker 00:
It did so because the board said Tata's disclosure of the three zone limitation was a mistake.

[00:00:40] Speaker 02:
Council, you cited to spelling errors in some of your briefing regarding examples of apparent errors.

[00:00:47] Speaker 02:
Are you assuring that spelling errors are the only types of error that would constitute an apparent error?

[00:00:54] Speaker 00:
I wouldn't say that, Your Honor.

[00:00:55] Speaker 00:
The standard comes directly from

[00:00:57] Speaker 00:
Yale, as well as from principles of patent law.

[00:01:01] Speaker 00:
And the standard is just, I guess, turning to Yale first.

[00:01:05] Speaker 00:
I think that that's obviously the seminal case that the briefing focused on.

[00:01:09] Speaker 00:
And that case really focused on the fact of the perspective of a skilled artisan and how they would read it.

[00:01:15] Speaker 00:
So if it were a spelling error that a skilled artisan would take to mean something, then that error would be credited as a disclosure.

[00:01:23] Speaker 00:
But if it's something that a skilled artisan would immediately recognize and disregard,

[00:01:27] Speaker 00:
correct in their mind as a typo, that's the standard.

[00:01:31] Speaker 00:
So we're looking at it from the perspective of a skilled artisan and we're looking at how they would view the error.

[00:01:38] Speaker 03:
So from the perspective of a skilled artisan, why wouldn't there be an apparent error here where it's particularly looking from the perspective of a skilled artisan

[00:01:50] Speaker 03:
The information, I think it's in Table 5, doesn't correlate to the information in Table 9, so why wouldn't a skilled artisan see that there's an error there?

[00:02:06] Speaker 00:
There's no record evidence indicating a skilled artisan had ever identified the error by just comparing it to Table 9.

[00:02:13] Speaker 03:
So you would say it has to have actual evidence that a skilled artisan finds it in order to satisfy the standard?

[00:02:19] Speaker 00:
I'm not saying that that's a requirement.

[00:02:21] Speaker 00:
However, if you look at the facts of this case here, the board came to the conclusion that, oh, you could compare tables as you referenced or look at the Japanese priority application based on hindsight.

[00:02:33] Speaker 00:
The only way that skilled artisans have uncovered the error was from Mr. Aikens, and Mr. Aikens took up to 12 hours to uncover that error.

[00:02:42] Speaker 00:
And what's really key in Yale is that it says that a skilled artisan would not even be led to think about building whatever the disclosure is.

[00:02:50] Speaker 00:
Mr. Aikens clearly looked at the disclosure here, and he was led to build and model the lens.

[00:02:56] Speaker 00:
as did Dr. Chipman.

[00:02:57] Speaker 02:
Wasn't he doing some other things?

[00:02:58] Speaker 02:
I mean, isn't that 12 hours somewhat disingenuous in terms of the amount of time that it takes?

[00:03:05] Speaker 00:
So it's true that he was, according to his testimony, reviewing exactly what Dr. Chipman did and sort of following those procedures.

[00:03:14] Speaker 00:
But the fact remains that he still has at least the skill of an ordinary artisan and he reviewed Tata and didn't immediately recognize the error when he reviewed it.

[00:03:24] Speaker 00:
He then

[00:03:25] Speaker 00:
was led to reconstruct the computer model of the lens.

[00:03:29] Speaker 02:
We keep importing an immediate requirement.

[00:03:32] Speaker 02:
What's your basis for saying it needs to have that sort of temporal aspect for this apparent error analysis?

[00:03:38] Speaker 00:
Yes.

[00:03:38] Speaker 00:
That comes directly from Yale on 434F2D669, where the court focuses on the fact that both the court and skilled artisans would immediately note the inconsistency.

[00:03:50] Speaker 00:
And there's an important principle of patent law that that's based on beyond Yale.

[00:03:56] Speaker 00:
And it's the idea that you cannot claim a patent, which is a monopoly, on inventions that are already in the public possession.

[00:04:02] Speaker 00:
The public already has notice of the invention.

[00:04:06] Speaker 00:
So the immediately disregard a correct standard comes from that idea that if a skilled artisan would read it and not immediately say, oh, this is a typo.

[00:04:13] Speaker 00:
What if it takes some three hours?

[00:04:16] Speaker 00:
So obviously, in this case, it didn't.

[00:04:18] Speaker 00:
It took much longer.

[00:04:19] Speaker 00:
But I think the immediacy requirement requires

[00:04:23] Speaker 00:
Perhaps less time than that.

[00:04:24] Speaker 00:
Three hours would be a lot of analysis of a document to realize that there's an error.

[00:04:28] Speaker 03:
Sometimes mathematical errors aren't seeing apparent.

[00:04:31] Speaker 03:
They're not apparent on the face.

[00:04:34] Speaker 03:
It takes a little bit of work to figure it out.

[00:04:37] Speaker 03:
So the problem I'm having, I'm just going to tell you the concern I have about the rule you're advocating.

[00:04:43] Speaker 03:
It feels like a bright line rule where I'm supposed to figure out, because this is a factual question.

[00:04:48] Speaker 03:
And I'm supposed to determine whether substantial evidence supports the finding below.

[00:04:52] Speaker 03:
And you're suggesting that I should put a temporal limit on the amount of time it takes a POSA to identify the error.

[00:05:05] Speaker 03:
I'm just having trouble with that because I really don't like bright line rules.

[00:05:10] Speaker 03:
I think that their rules are to be tailored for each specific situation.

[00:05:16] Speaker 03:
So why don't you tell me why it is that I should have a bright line rule?

[00:05:20] Speaker 03:
That it should be, I don't know, how much time?

[00:05:22] Speaker 03:
An hour?

[00:05:22] Speaker 03:
10 minutes?

[00:05:24] Speaker 03:
15 minutes?

[00:05:25] Speaker 03:
How much time should I give a poser to figure out that there's an apparent error?

[00:05:29] Speaker 00:
So I think it'll always be fact specific so that you don't have to make a bright line rule.

[00:05:34] Speaker 00:
to rule in this case.

[00:05:35] Speaker 00:
And I'll also add that I'm not advocating for anything beyond what Yale already says, because Yale already includes a component of immediacy.

[00:05:44] Speaker 02:
Can we, on Yale, just because I want to make sure I understand what you're saying it says here.

[00:05:48] Speaker 02:
I pulled up Yale, because you're talking about it, so I appreciate your discussion of that.

[00:05:51] Speaker 02:
But when I looked to the word immediately, I didn't see it in the context of a posa.

[00:05:57] Speaker 02:
It looked like it was in a different context.

[00:05:59] Speaker 02:
So can you at least point me to exactly where in Yale your

[00:06:04] Speaker 02:
getting this immediacy requirement.

[00:06:05] Speaker 02:
I want to make sure I understand your argument.

[00:06:07] Speaker 00:
Sure.

[00:06:07] Speaker 00:
So I believe I provided you the page site before, which was 669.

[00:06:11] Speaker 00:
And if you look at Yale then, it first begins by discussing whether the prior art places the compound in the possession of the public, once again underlying the policy principles in there.

[00:06:25] Speaker 00:
And then if we go on, it says,

[00:06:35] Speaker 00:
It goes on to say that the one we immediately noted was the inconsistency between figures one and figures three of Clements, which is the prior article.

[00:06:45] Speaker 00:
So it notes that the court itself, which is not, I'll give it to you, a skilled artisan, but perhaps... That's not stating what the test is, right?

[00:06:54] Speaker 03:
They say that it cannot be said that one of ordinary family art would do anything more than mentally disregard

[00:07:03] Speaker 03:
the error as a misprint or mentally substitute the correct information in its place.

[00:07:10] Speaker 03:
That's something they say.

[00:07:11] Speaker 03:
And they say that inconsistencies which make it apparent that the

[00:07:18] Speaker 03:
that there was an error.

[00:07:20] Speaker 03:
They don't say the test is whether it's immediately noted, right?

[00:07:23] Speaker 03:
They just say, after they say what the test is, they say, suffice it to say that the one we immediately noted was blah, blah, blah.

[00:07:31] Speaker 03:
It's the one bit of information that they immediately noted that would suggest that there was an error.

[00:07:37] Speaker 00:
In the next paragraph, they go on to say, we have no doubt that the chemist of ordinary skill in the art would readily recognize.

[00:07:43] Speaker 00:
So I'll give it to you that they don't use the word immediately in that line, but readily

[00:07:48] Speaker 00:
has a sense of a temporal aspect to it.

[00:07:51] Speaker 00:
And that is our interpretation of Yale.

[00:07:54] Speaker 00:
And it makes sense from a policy perspective to interpret Yale narrowly, to only allow mistakes which are part of the public domain, that the public has been noticed on.

[00:08:05] Speaker 00:
In this case, it's an issued patent that Mr. Tata didn't notice the error.

[00:08:11] Speaker 00:
His prosecuting attorneys didn't notice the error.

[00:08:14] Speaker 00:
The patent office examiner didn't notice the error.

[00:08:17] Speaker 00:
Corrections Branch when they corrected other errors in the patent, didn't notice the error.

[00:08:22] Speaker 00:
And LGE's expert, Dr. Chipman, who himself is a skilled artisan, was led from the data in this document to then construct a model based on that table.

[00:08:32] Speaker 02:
Do you have any other case besides Yale that imports some type of temporal standard or immediacy requirement?

[00:08:39] Speaker 00:
The cases do not have a lot of analysis other than Yale.

[00:08:42] Speaker 00:
I would point you to Henry Garfinkel, which is a case where the

[00:08:45] Speaker 00:
court did find that the error should not be disregarded.

[00:08:49] Speaker 00:
It doesn't have a discussion of immediacy, but it does note that despite the fact that there was a typographical error in that one, it wasn't something that would be readily apparent to a skilled artisan.

[00:08:59] Speaker 00:
And to be clear, we used the terms immediately disregard or correct as a paraphrase of the teachings of Yale and how it should be applied to this case.

[00:09:08] Speaker 00:
I also want to point out, as I was saying as to who didn't recognize this error,

[00:09:12] Speaker 00:
Intermission filed a patent order preliminary response in this case and did not recognize the error.

[00:09:18] Speaker 03:
These arguments were all made to the fact finder below, right?

[00:09:22] Speaker 00:
I believe so, yes.

[00:09:23] Speaker 03:
And the fact finder below said, yeah, we hear you, but there's just other evidence that compels us to think there's an error here, right?

[00:09:31] Speaker 00:
The fact finder did, but the board made fact findings

[00:09:36] Speaker 00:
based on an incorrect legal standard under Yale.

[00:09:39] Speaker 00:
The board found that a skilled artisan with the benefit of hindsight could find the error by comparing the tables and looking at the priority opportunities.

[00:09:46] Speaker 03:
Can you show me, you're pointing out some language where the board says, with the benefit of hindsight, we see there is an error?

[00:09:52] Speaker 00:
That's our interpretation of it.

[00:09:54] Speaker 00:
If you look at appendix page 66, that's where the board uses the term obvious.

[00:09:59] Speaker 00:
But it's very much using that word, which obviously is used frequently in patent law, in a sort of general, could

[00:10:05] Speaker 00:
the skilled artisan eventually uncover the error.

[00:10:09] Speaker 00:
And I don't think there's any dispute that yes, it could, but this should be a narrow... You agree there's an error at this point, right?

[00:10:16] Speaker 03:
Absolutely.

[00:10:17] Speaker 03:
It was a trans... I guess it was a copyright case error.

[00:10:21] Speaker 00:
Yeah, that is our guess.

[00:10:22] Speaker 00:
We do not have evidence from Tata himself saying where it came from, but it appears to have been copyrighted.

[00:10:26] Speaker 03:
Because the earlier Japanese patent

[00:10:29] Speaker 03:
that from which the US application, I guess, was derived has information that was not properly copied into the table, right?

[00:10:38] Speaker 00:
That's the way that it appears.

[00:10:39] Speaker 00:
It was a patent application from Japan.

[00:10:41] Speaker 00:
It was not an issued patent, but yes.

[00:10:46] Speaker 00:
So going back to Yale for a moment, because I think if you look at Yale and juxtapose the error from Yale to that here, it really becomes clear that the error that was mentioned in Yale is something that

[00:10:57] Speaker 00:
a skilled artisan would disregard, wouldn't consider, whereas there is disclosure here.

[00:11:02] Speaker 00:
Yale involved with Prior Arts Clements' article, which had well-known compounds for making an anesthetic compound.

[00:11:09] Speaker 00:
One of them was CF3CHCLBR.

[00:11:13] Speaker 00:
It was in its text.

[00:11:14] Speaker 00:
It was in figure one, and it was a known compound.

[00:11:17] Speaker 03:
It was something... Can I go back?

[00:11:18] Speaker 03:
I just want to go back, because we've read Yale.

[00:11:21] Speaker 03:
I understand what your point is here.

[00:11:24] Speaker 03:
I have a question on page 866 going back to it.

[00:11:27] Speaker 03:
It's the particular language that you're relying on for saying that the board is relying on hindsight is the one that says, the particular manner in which Mr. Aiken determined that there was an error in table five was laid out in patent owner's response does not diminish that there is an obvious error in tada within the meaning of Yale.

[00:11:46] Speaker 03:
That's the sentence you're relying on?

[00:11:48] Speaker 03:
Is that correct?

[00:11:49] Speaker 03:
I just want to make sure I understand.

[00:11:54] Speaker 00:
Sorry, I'm just looking for where on the page the line.

[00:11:56] Speaker 00:
Oh, I see where it is, that last paragraph.

[00:12:00] Speaker 00:
That is part of it.

[00:12:01] Speaker 00:
And also, if you go up to the line that begins the relevant question, which is about halfway down the page, the relevant question is whether the error was an obvious error to one of ordinary skill in the art, not whether Mr. Aikens happened to take a securities route to determine that the aspherical data in Table 5 was in fact the error.

[00:12:19] Speaker 00:
And then it goes on to give its findings

[00:12:21] Speaker 00:
The board is very much using obvious error here, because it's clear that Mr. Aiken's, only by hindsight, that's the only way that anybody has ever been able to come to a quick solution to find this error.

[00:12:32] Speaker 03:
What if, like, Mr. Aiken, you know, he's not going to think there's an error?

[00:12:36] Speaker 03:
It might have taken some work to figure out there was an error, because, you know, it's not often that patents have this kind of error in it, right?

[00:12:43] Speaker 00:
I would agree with that, and that's why we should lean towards disclosure.

[00:12:45] Speaker 00:
This table's been in the prior art for 20 years, even basically finding that this wouldn't

[00:12:51] Speaker 00:
be an error would prevent even Mr. Tada from practicing literally what he disclosed in his own patent.

[00:12:57] Speaker 03:
The concern I'm having about your rule that you're proposing is that I'm supposed to look at how the error was observed.

[00:13:04] Speaker 03:
I'm not supposed to look at the quality of the error.

[00:13:05] Speaker 03:
I'm only supposed to look at how it was actually finally determined, and that I'm supposed to judge that and determine how much time it took, how much effort it took in deciding whether something's

[00:13:20] Speaker 03:
an error under Henry Yale or not?

[00:13:23] Speaker 00:
So how it was actually found is not dispositive.

[00:13:26] Speaker 00:
I think it's just relevant to the inquiry.

[00:13:28] Speaker 00:
Just as in Yale, they commented that the error was found by skilled artisans who wrote to the editor and the writer, and the writer wrote back.

[00:13:34] Speaker 00:
So it's clearly relevant to the inquiry, but how it was actually uncovered is not the inquiry.

[00:13:41] Speaker 00:
What you're supposed to do from Yale is look at the reference from the perspective of a skilled artisan and say, how would a skilled artisan view this error?

[00:13:48] Speaker 00:
Would they view it as a disclosure?

[00:13:50] Speaker 00:
Or would they immediately recognize, disregard, or correct that error?

[00:13:55] Speaker 00:
And that's the question here.

[00:13:57] Speaker 00:
And that didn't happen here.

[00:13:58] Speaker 00:
The evidence is clear that everyone who looked at this until many hours were spent didn't disregard that reference.

[00:14:04] Speaker 00:
So to take it away.

[00:14:05] Speaker 03:
Put that immediately back in there.

[00:14:07] Speaker 03:
The question is whether they would recognize that there is an error, not an immediate error.

[00:14:12] Speaker 00:
They eventually recognized the error.

[00:14:14] Speaker 00:
But it took them a lot of time.

[00:14:16] Speaker 00:
And the key language in Yale, again, is you wouldn't be led to build it.

[00:14:20] Speaker 00:
There's no doubt that the skilled artisans here who reviewed it were led to build it.

[00:14:25] Speaker 00:
I see I've used my rebuttal time.

[00:14:27] Speaker 00:
I'm happy to answer more questions or reserve what I have left.

[00:14:30] Speaker 04:
Thank you.

[00:14:35] Speaker 04:
One more question.

[00:14:36] Speaker 04:
Are you also arguing at all that, let's say that depending on the observer, it would take more or less time for the error to be captured?

[00:14:50] Speaker 04:
that this controls in the entirety, whether the entire title reference is discarded or whether anything else in that reference should continue to be relevant in the overall review of the invention.

[00:15:07] Speaker 00:
So I didn't read the board's opinion as disregarding Tata's disclosure as a whole.

[00:15:12] Speaker 00:
In fact, it analyzed other aspects of Tata.

[00:15:14] Speaker 00:
So I don't think the court needs to go that far here.

[00:15:16] Speaker 00:
The key issue is just whether or not you need to disregard the disclosure from table five.

[00:15:21] Speaker 00:
So that's not really an issue that's before the court that the court needs to consider.

[00:15:26] Speaker 00:
But I think I would agree with the board that the rest of the disclosure is still valid to a skilled artisan.

[00:15:32] Speaker 04:
OK, we'll save your rebuttal.

[00:15:34] Speaker 04:
Let's hear from the other side.

[00:15:35] Speaker 04:
Thank you, Your Honor.

[00:15:37] Speaker 01:
Thank you, Your Honor.

[00:15:38] Speaker 01:
May it please the Court.

[00:15:39] Speaker 04:
Hold on until we remove the screen.

[00:15:42] Speaker 04:
We can't see you.

[00:15:43] Speaker 04:
There you are.

[00:15:46] Speaker 04:
And they will move the device to the center of the court.

[00:15:54] Speaker 04:
And Mr. Simmons, now please proceed.

[00:15:58] Speaker 01:
Thank you, Your Honor.

[00:16:00] Speaker 01:
May it please the Court.

[00:16:01] Speaker 01:
I'd like to address what counsel said about Mr. Higgins spending 10 to 12 hours.

[00:16:05] Speaker 01:
We disagree with that.

[00:16:07] Speaker 01:
Mr. Aikens did not set out to find an error.

[00:16:10] Speaker 01:
In fact, in Appendix 2339 to 2425, he talks about what he was doing was repeating what Dr. Chittman did.

[00:16:19] Speaker ?:
Dr. Chittman only modeled in vitamin three.

[00:16:24] Speaker 01:
And he did so to find the three-zone limitation because in TATA, it never mentioned expansion, compression, expansion.

[00:16:32] Speaker 01:
That's the three-zone limitation.

[00:16:34] Speaker 01:
you had to model that in vitamin three to meet the claim limitations of the patented issue, which is the 990 patent.

[00:16:41] Speaker ?:
So Mr. Aikens repeated what he did.

[00:16:44] Speaker ?:
He didn't say he read the whole patent from the beginning.

[00:16:47] Speaker ?:
He said he repeated what Dr. Chitlin did.

[00:16:50] Speaker 01:
When he did so, he found that the lens didn't work.

[00:16:53] Speaker 01:
He said, I must have done something wrong.

[00:16:55] Speaker 01:
So if you go to page 2425, he said, excuse me, I'm finding the exact quote.

[00:17:03] Speaker ?:
And this is in response to a question from petitioner during his deposition.

[00:17:07] Speaker 01:
Mr. Jenkins testified that when I was typing in in volume two from table three, the A-Sphere coefficients were exactly the same as table five.

[00:17:16] Speaker 01:
That's never true.

[00:17:18] Speaker ?:
So the person of ordinary is still in the art.

[00:17:20] Speaker 01:
Just looked at table two or table three and table five and said, that can't be right.

[00:17:26] Speaker ?:
Many knew the A-Sphere two wasn't correct.

[00:17:29] Speaker ?:
So it wasn't 10 to 12 hours.

[00:17:31] Speaker 01:
It was only when he went back from the beginning of the reference did he identify the issue.

[00:17:36] Speaker 01:
An additional thing that he found is that when you look at Table 5, the numbers should match Table 9.

[00:17:42] Speaker 01:
So he said in his testimony in Appendix 2427, because the focal length is 1, Table 9 rather conveniently gives you key-spirit coefficients, 3 for 4 volumes.

[00:17:53] Speaker ?:
And it matches correctly for 1, 2, and 4.

[00:17:55] Speaker 01:
That's totally the wrong for 3.

[00:17:59] Speaker 01:
So then he went and got the Japanese

[00:18:00] Speaker 01:
priority application, which is incorporated by reference in Tata.

[00:18:04] Speaker 01:
LG hasn't disputed it.

[00:18:06] Speaker 01:
Their expert didn't address it.

[00:18:09] Speaker 01:
The Japanese priority application has a table five in it.

[00:18:13] Speaker 01:
Mr. Atkins testified that he could read the numbers in table five of the Japanese application and compare them to table five of the US version of Tata, and they didn't match.

[00:18:25] Speaker 01:
So let's talk about what LG admits.

[00:18:27] Speaker 01:
LG doesn't dispute the dictionary in Tata.

[00:18:30] Speaker 01:
In fact, LG admits there's an error in Tata's Table 5.

[00:18:35] Speaker 01:
At Blueberry, page 15, it says, LG has not denied that there's an error in Tata's Table 5.

[00:18:42] Speaker 01:
Further, there's no dispute that if a lens was constructed using the correct aspherical data from Tata's Japanese priority application, the lens would not satisfy the three zone limitation.

[00:18:57] Speaker 01:
This all comes from the intrinsic record and supports the PTAB spinal written decision.

[00:19:02] Speaker 01:
Now let's go back to the difference between Yale and Garfinkel.

[00:19:07] Speaker 01:
And I want to read from Yale because we're talking about how long did it take?

[00:19:11] Speaker 01:
We agree there should not be a temporal limitation.

[00:19:14] Speaker 01:
The real issue is whether you can discern the error from the intrinsic record or if you have to go to the extrinsic record.

[00:19:21] Speaker 01:
In Yale, at that same passage, if you read the beginning part of it,

[00:19:25] Speaker 01:
It said, appellant has gone through a detailed review.

[00:19:29] Speaker 01:
These are the words from Yale.

[00:19:30] Speaker 01:
A detailed review of the Clements article to point out inconsistencies, plural, which make it apparent that the typographical compound error is an error.

[00:19:41] Speaker 01:
Any number of these individually or cumulatively, we believe, would alert one of ordinary students to the existence of a typographical error.

[00:19:50] Speaker 01:
Suffice it to say, the one we immediately noted

[00:19:54] Speaker ?:
was that the inconsistency between FIGS I and III of opponents.

[00:19:59] Speaker 01:
So they compared two tables after they were alerted to it by one of our nice skill in the art, who went through a detailed review.

[00:20:07] Speaker 01:
That doesn't sound like immediate.

[00:20:11] Speaker 01:
So.

[00:20:12] Speaker 02:
Council, how do you interpret the phrase mentally disregarding Neil?

[00:20:18] Speaker 01:
Immediately disregard.

[00:20:19] Speaker 02:
Mentally disregard.

[00:20:21] Speaker 02:
I just wanted to be accurate.

[00:20:23] Speaker 01:
Mentally disregard.

[00:20:24] Speaker 01:
So once Mr. Akins, for example, saw that the values in table five made a bad lens, Mr. Akins, one of ordinary skill in the art, wouldn't make it.

[00:20:33] Speaker 01:
That's why he went back and looked for what the real numbers were.

[00:20:37] Speaker 01:
So mentally disregard is, why would I use it if it's not right?

[00:20:41] Speaker 01:
The same thing happened in EL.

[00:20:43] Speaker 01:
Somebody looked at the compound.

[00:20:45] Speaker 01:
They wouldn't have recognized that the compound was a typo.

[00:20:48] Speaker 01:
if they only looked at figure three.

[00:20:50] Speaker 01:
It's when they went back to figure one and saw that the compound without the typo was there.

[00:20:56] Speaker 01:
And then they saw that the log p of f, I think it is, the log values were the same for the typo compound and for the correct compound, which also should never happen.

[00:21:09] Speaker 01:
Just like the eight spherical values in tables three and five in TATA should never match.

[00:21:17] Speaker 01:
That's your question.

[00:21:18] Speaker 02:
That's fine.

[00:21:19] Speaker 01:
Go ahead.

[00:21:22] Speaker 01:
OK.

[00:21:22] Speaker 01:
So with respect to Garfinkel, before I forget, in Garfinkel, the difference between Yale and Garfinkel is in Garfinkel, there was nothing to let somebody know that there was an error.

[00:21:33] Speaker ?:
There wasn't an inconsistency in the records.

[00:21:36] Speaker 01:
What happened was they submitted a declaration from a third party that said, oh, this wasn't, I believe Garfinkel is the 5.12%

[00:21:47] Speaker 01:
aluminum oxide, it was only 2%.

[00:21:51] Speaker 01:
But that was an information from within the reference.

[00:21:54] Speaker 01:
So they found that the reference that was used in Gar-Krinkle put the public on notice that this could be the glass that has this percentage.

[00:22:02] Speaker 01:
The same thing with N. Ray Clark, which is a fed circuit case.

[00:22:06] Speaker 01:
In N. Ray Clark, the reference disclosed an FM transmitter.

[00:22:11] Speaker 01:
There was nothing within the four corners of the reference where in the

[00:22:15] Speaker 01:
disclosure within the reference that would tell you there wasn't an FM transmitter.

[00:22:19] Speaker 01:
They also submitted a secondary affidavit that said there actually wasn't an FM transmitter in that prior device.

[00:22:28] Speaker 01:
So they said that's not an obvious error.

[00:22:30] Speaker 03:
How do you respond to the argument that there should be some sort of temporal component to this test, the idea being that if the error

[00:22:45] Speaker 03:
is not able to be determined fairly quickly, it must not be an obvious error of the type that a POSA would cause a deposition to mentally disregard the errant disclosure.

[00:22:59] Speaker 01:
I think the issue is not how long it takes.

[00:23:02] Speaker 01:
We agree there should not be a temporal limitation.

[00:23:06] Speaker 01:
Why not?

[00:23:07] Speaker 01:
The real issue is whether you can tell the error from the intrinsic disclosure of the records or not.

[00:23:13] Speaker 01:
So if the error is readily apparent from the intrinsic disclosure within the reference itself, that's an obvious error.

[00:23:20] Speaker 01:
If it's not, and you have to turn to extrinsic evidence, that would not be an obvious error.

[00:23:24] Speaker 03:
So I think your adversary argues it's not readily apparent here, because otherwise it wouldn't have taken so much time to determine that there was, in fact, an error.

[00:23:36] Speaker 03:
Do you think that should be something legal issue?

[00:23:39] Speaker 03:
I understand you've already said that you don't agree with that.

[00:23:42] Speaker 03:
I understand that argument.

[00:23:44] Speaker 03:
I'm just asking, as a legal matter, what do you think of that test?

[00:23:50] Speaker 01:
I don't think that that test can work.

[00:23:51] Speaker 01:
I mean, it's impossible to decide.

[00:23:54] Speaker 01:
References are of different lengths and different complexities, and it depends whether you can see by comparing two tables.

[00:24:02] Speaker 01:
Like in our case, I think it really doesn't take that long, as the board found, or the panel found, where you could see table three and table five were identical.

[00:24:10] Speaker 01:
That's a problem.

[00:24:11] Speaker 01:
You can see Table 5 and Table 9 didn't match.

[00:24:13] Speaker 01:
That's a problem.

[00:24:14] Speaker 01:
That's not.

[00:24:15] Speaker 01:
That's readily apparent.

[00:24:16] Speaker 01:
But if you put a time limit on, let's go to a more complex case, like the one in Clark, where we were talking about nuclear transmitters.

[00:24:24] Speaker 01:
The references were long.

[00:24:26] Speaker 01:
So how long does it take to actually read the overall reference and start comparing the charts?

[00:24:30] Speaker 01:
I think that's an impossible black line to put on a test.

[00:24:34] Speaker 03:
So the question really should be whether a poser thinks there's an obvious error from the face of the patent itself.

[00:24:41] Speaker 01:
Yes, Your Honor.

[00:24:43] Speaker 01:
That answer your question?

[00:24:44] Speaker 03:
Yes.

[00:24:48] Speaker 01:
Unless the panel has any further questions, I have nothing more.

[00:24:55] Speaker 04:
Any more questions?

[00:24:57] Speaker 04:
All right.

[00:24:57] Speaker 04:
Thank you.

[00:25:13] Speaker 04:
Ms.

[00:25:14] Speaker 04:
Goldenberg.

[00:25:18] Speaker 00:
Thank you, Your Honor.

[00:25:21] Speaker 00:
The standard that opposing counsel is promoting is one that just doesn't make sense, especially when you look at this case, because the numbers here were within range.

[00:25:31] Speaker 00:
You compare the other cases where the numbers were just blatantly out of range, or the compound was entirely unknown when it was an article about known compounds.

[00:25:39] Speaker 00:
That's something that APOSA, who was reading it,

[00:25:42] Speaker 00:
would readily recognize it would be apparent, they would immediately disregard it as if the disclosure wasn't even there.

[00:25:49] Speaker 03:
Here, these numbers were- I don't even know if that's true, to be honest with you.

[00:25:52] Speaker 03:
I mean, I'm just going to press on this fact finder point.

[00:25:55] Speaker 03:
I'm not a POSA.

[00:25:57] Speaker 03:
Shouldn't I be looking at and deferring to the finding of fact of the board below on this issue and others about whether something would be an apparent obvious error to

[00:26:07] Speaker 03:
person born in Erie's family aren't.

[00:26:09] Speaker 03:
As an electrical engineer, I surely don't know whether Yale was an obvious error or not.

[00:26:15] Speaker 00:
Well, you can certainly defer to fact-finding as you should, but once again, in this case, the board used the Four Corners intrinsic standard that my opponent is promoting here, and that's not what Yale says.

[00:26:27] Speaker 00:
He's saying, oh, you can put these numbers into a model and you'll see something's wrong.

[00:26:31] Speaker 00:
And that's the opposite of Yale.

[00:26:33] Speaker 00:
Yale says, do not build it.

[00:26:35] Speaker 00:
If you were even led to build it to realize there's a mistake, then you haven't satisfied the standard.

[00:26:41] Speaker 03:
And didn't the board also say, you can tell the error is apparent by comparing the tables?

[00:26:47] Speaker 03:
Oh, nobody would have the same numbers for the embodiment in table three compared to the embodiment in table five.

[00:26:55] Speaker 03:
That he didn't recognize that before doesn't mean that it wasn't apparent.

[00:26:59] Speaker 00:
Well, of course, that was with hindsight.

[00:27:01] Speaker 00:
But as well, the board was still using the incorrect standard.

[00:27:04] Speaker 00:
The board was using the standard of four corners of the reference, the intrinsic evidence standard, which is not what Yale says.

[00:27:12] Speaker 00:
And there are principles of patent law behind the standard that I'm advocating that I think are absent from the standard that ImmorVision is advocating.

[00:27:22] Speaker 00:
It's pretty dramatic.

[00:27:23] Speaker 00:
It's pretty drastic to take away something that's been disclosed to the public.

[00:27:28] Speaker 00:
That's exactly what he's advocating, to say that the public cannot rely on an issued and expired patent.

[00:27:34] Speaker 00:
It can't even practice that anymore because there was a mistake, and it was a mistake that it took a skilled artisan many hours to find when many other artisans and lawyers and other people who looked at this reference didn't realize that mistake.

[00:27:46] Speaker 00:
There are patent policy issues behind that that would counsel against such a rule.

[00:27:53] Speaker 00:
And his role is actually the bright line, clear rule, because this rule allows flexibility from the perspective of the skilled artisan.

[00:28:00] Speaker 00:
It allows the board to make those fact findings with every single reference.

[00:28:07] Speaker 00:
Unless the court has any other questions?

[00:28:09] Speaker 00:
All right.

[00:28:09] Speaker 00:
Well, thank you.

[00:28:15] Speaker 04:
OK.

[00:28:19] Speaker 04:
Right.

[00:28:20] Speaker 04:
Our thanks to counsel.

[00:28:21] Speaker 04:
The case is taken under submission.