[00:00:00] Speaker 02:
Our next case is Inouye Wingen, 2021, 23, 22.

[00:00:10] Speaker 02:
Mr. Casino.

[00:00:12] Speaker 01:
Good morning.

[00:00:13] Speaker 01:
May it please the court.

[00:00:14] Speaker 01:
The board erred when it glossed over the factors that inform the public use accessibility type readily available standardized supply to the subject matter of the alleged public use, the display of the Cherry Star plant and its associated advertisement.

[00:00:37] Speaker 01:
And in doing so, the board below cited the case Epstein.

[00:00:43] Speaker 01:
which is some sort of database, if I remember correctly, like a Westlaw or a Lexis type database.

[00:00:49] Speaker 01:
And in this, that predicate finding in that case was that the invention that was a subject matter to use was in commerce.

[00:00:58] Speaker 01:
There's no course, and that is what made that invention rarely available to the public, or at least the reason we believe.

[00:01:04] Speaker 02:
This, of course, is a plant patent.

[00:01:07] Speaker 02:
And the plant was shown in the public without

[00:01:12] Speaker 02:
confidentiality.

[00:01:14] Speaker 02:
And so the rejection is public use.

[00:01:19] Speaker 02:
Of what use is a flower?

[00:01:22] Speaker 01:
In this particular case, Your Honor, the plant is ornamental, as we stated.

[00:01:26] Speaker 02:
However, so that was a use that's available to the public.

[00:01:32] Speaker 01:
But the use was not sufficient to allow the public to determine all the claim elements that were material to patentability.

[00:01:39] Speaker 01:
This case is a reissue, Your Honor.

[00:01:41] Speaker 01:
and in the original prosecution using the language from reissue cases.

[00:01:44] Speaker 01:
In the original prosecution, the examiner there rejected a claim that recited merely the phenotype, the radially symmetric pattern.

[00:01:55] Speaker 01:
After rejecting a claim, the counsel and the inventor, I think it was the inventor and I think it was the representative for the predecessor owner to WinGen, interviewed the case with the original examiner

[00:02:09] Speaker 01:
And the original examiner suggested to link the phenotype to the gene, the single half-dominant gene.

[00:02:18] Speaker 01:
And that, of course, was adopted.

[00:02:20] Speaker 01:
And that was put into the original patent, which issued.

[00:02:24] Speaker 01:
And then during the reissue process, and then in this appeal, in an unrelated unappealed issue, the board

[00:02:32] Speaker 01:
determined that that limitation was material and that the claim required both the phenotype and the genotype.

[00:02:38] Speaker 02:
Maybe it was material to patentability.

[00:02:41] Speaker 02:
But why is it material to public use when the use of the flower was in the public and the public could see it?

[00:02:53] Speaker 02:
Now, take a chemical, an insecticide, and publicly

[00:03:02] Speaker 02:
It was used to kill plants.

[00:03:08] Speaker 02:
Now, that's a public use, presumably.

[00:03:11] Speaker 02:
The chemical structure of the insecticide isn't made known by its use, but that would probably be a use.

[00:03:19] Speaker 02:
So all the aspects that require patentability are not necessarily required for public use.

[00:03:31] Speaker 01:
I understand that, Your Honor, but here, in this case, when the original examiner required the linking of the phenotype to the gene, that also put into the gene the single half-dominant gene.

[00:03:44] Speaker 01:
And what that is is a breeding characteristic of the gene.

[00:03:47] Speaker 01:
In other words, there's results in the breeding.

[00:03:49] Speaker 01:
So in this case, because that element was forced to be put into the claim, we're saying it's material and that that's in addition to the phenotype itself.

[00:03:59] Speaker 01:
the use would be the manifestation of this half dominance of the gene.

[00:04:06] Speaker 01:
And that's what makes our case a little different than the motionless keyboard case, Your Honor.

[00:04:11] Speaker 01:
And in the motionless keyboard case, it was aesthetic in an ergonomic type sense, right?

[00:04:17] Speaker 01:
But there was no actual use in terms of the transmission of data from the keyboard to the device.

[00:04:24] Speaker 01:
And the court used particular language.

[00:04:26] Speaker 01:
saying that this was not the type of use that's relevant under 102B.

[00:04:30] Speaker 01:
Please don't think I'm quoting the case, but that's basically the upshot of that case.

[00:04:37] Speaker 01:
In addition, in the motion list, there was a display at the keyboard itself, and there was no Baxter or Netscape type analysis in the sense that the

[00:04:49] Speaker 01:
elements that would be presumed to be in the prior, say, like transmission, much like the eligibility cases quickly look at things.

[00:04:57] Speaker 02:
There's also an argument on the other side that this argument was forfeited by you by not having been raised before the board.

[00:05:07] Speaker 01:
Judge, I'm going to be very careful about dividing the candidates for alleged public use.

[00:05:13] Speaker 01:
It was not forfeited, Judge.

[00:05:17] Speaker 01:
Originally, with regard to the Home Depot attendees, they're the people that did not have possession of the plant material.

[00:05:26] Speaker 01:
We argued that having possession of the plant material was an important distinction.

[00:05:34] Speaker 01:
And what the examiner did is progressively up to the appeal of the rejection.

[00:05:37] Speaker 01:
He looked at Delano Farms, the case done plants really heavily fat, and then he said, okay,

[00:05:46] Speaker 01:
Well, this is not commercial exploitation.

[00:05:48] Speaker 01:
Next.

[00:05:49] Speaker 01:
Well, this is not on sale, the commercial aspect that we're talking about, right?

[00:05:54] Speaker 01:
And then with regard to EOLIS, we're way transmitted some code or whatever to some engineers.

[00:06:01] Speaker 01:
He underlined the term commercial exploitation.

[00:06:05] Speaker 01:
So with regard to the public use commercial accessibility, that wasn't, at least at the end, our response was successful with the examiner.

[00:06:16] Speaker 01:
And we pointed out on an appeal.

[00:06:18] Speaker 01:
What the judge did in his substitute for the commercial aspect, in our view, is the citation to Epstein.

[00:06:25] Speaker 01:
Because Epstein was in commerce.

[00:06:27] Speaker 01:
But why we're saying he glossed over is because he never analyzed Epstein, just summarily concluded that he would be in possession of these features.

[00:06:37] Speaker 04:
Let me tell you how I understand this, and you'll tell me if I'm wrong.

[00:06:40] Speaker 04:
that there was an argument in front of at least the examiner.

[00:06:45] Speaker 04:
Maybe it got to the board about whether Proven Winners was really different from WinGen.

[00:06:54] Speaker 04:
So whether Proven Winners was, which is the one that was, I guess, doing the actual display at the February 2011 event at Home Depot.

[00:07:06] Speaker 04:
And one of the issues was whether Proven Winners was itself a member of the public, which if that's true, would put this into a category where a member of the public is the one doing the use.

[00:07:20] Speaker 04:
That faded away, I gather, in light of some dispute about whether proven winners is close enough to you to be effectively equated to it.

[00:07:29] Speaker 04:
So that was not part of a basis of the board decision.

[00:07:32] Speaker 04:
The examiner also had said, pretty centrally, that the reason for the public use rejection was that this was a commercial exploitation.

[00:07:43] Speaker 04:
The board also didn't decide that.

[00:07:45] Speaker 04:
The board instead decided that assuming that the user was the inventor, you the owner, and not a member of the public, that that was in this case enough.

[00:08:01] Speaker 04:
And I think the argument that you're making now is that

[00:08:06] Speaker 04:
In those kinds of cases where it's the inventor doing the use, not itself a member of the public, there are requirements about the amount of information that has to be transmitted or received by the public when it's the inventor doing the use.

[00:08:26] Speaker 04:
And that amount of information was not transmitted here because the

[00:08:31] Speaker 04:
the attendees at the February 2011 event could not ever see that an element of the claim was present, namely the half-dominant gene.

[00:08:43] Speaker 01:
Have I understood that right?

[00:08:44] Speaker 01:
Yes, Your Honor.

[00:08:45] Speaker 04:
And I think that the government's argument is you never said that to the board.

[00:08:52] Speaker 04:
You never said to the board there's information that is necessary for public use that had to be

[00:09:00] Speaker 04:
transmitted to the audience, to the attendees.

[00:09:05] Speaker 01:
And that's a forfeiture.

[00:09:13] Speaker 01:
that issue wasn't raised.

[00:09:15] Speaker 04:
If the commercial in commerce... You did not seek rehearing to say that this was a new ground of rejection.

[00:09:22] Speaker 04:
So I don't see how you get to say here that you were entitled not to make the argument to the board.

[00:09:33] Speaker 04:
If you had said this was a new ground of rejection, that would be one thing, but you didn't.

[00:09:38] Speaker 01:
Just the commerce angle was

[00:09:40] Speaker 01:
was to substitute the citation to Epstein is what substituted for the commerce with the examiner.

[00:09:46] Speaker 01:
So the examiner had something plus, so this display plus this advertisement for sure, plus his commerce type comments.

[00:09:57] Speaker 01:
The way we read the opinion was that the substitution for the commerce part was the citation to Epstein, and that was glossed over.

[00:10:05] Speaker 03:
Do you think that the board instituted a new ground?

[00:10:09] Speaker 03:
I mean, it sounds like what you're arguing for us today is that things changed up at the board, and their grounds changed sufficiently that you didn't have to have raised this issue.

[00:10:25] Speaker 03:
That's what I hear you to be saying.

[00:10:27] Speaker 02:
I'm sorry.

[00:10:27] Speaker 02:
Judge, the last part I couldn't quite hear.

[00:10:29] Speaker 03:
I understand you to be saying that the board's decision changed the grounds for finding public use, so much so that you did not have to have presented this argument about whether all the claim elements have to be displayed below.

[00:10:44] Speaker 03:
Is that what you're saying?

[00:10:45] Speaker 01:
Our argument was you needed to possess the plant material itself in order to ascertain the features of the claim.

[00:10:52] Speaker 01:
And that position hasn't changed.

[00:10:54] Speaker 03:
When did you make that argument below?

[00:10:56] Speaker 01:
When we cited the citation that we said, just like in Delano, that these Home Depot attendees did not have actual possession of the client material.

[00:11:07] Speaker 01:
That was made several times below, Your Honor, and numerously throughout.

[00:11:13] Speaker 01:
In terms of... Do you want to give us sites?

[00:11:21] Speaker 01:
Yes, Judge.

[00:11:22] Speaker 01:
Let me find...

[00:11:25] Speaker 02:
You have a second chair that could help?

[00:11:27] Speaker 01:
Yeah, she could help.

[00:11:28] Speaker 01:
I also have some time.

[00:11:29] Speaker 01:
Is there time?

[00:11:30] Speaker 01:
Can I go sit down and tab it and then come back?

[00:11:33] Speaker 02:
Yes.

[00:11:35] Speaker 02:
And you want to save the remainder of your time?

[00:11:38] Speaker 01:
Reserve the remainder of my time too, Judge.

[00:11:40] Speaker 01:
Thank you.

[00:11:43] Speaker 02:
Ms.

[00:11:43] Speaker 02:
Queller.

[00:11:47] Speaker 00:
Thank you, Your Honor.

[00:11:48] Speaker 00:
I may excuse the court.

[00:11:49] Speaker 00:
This court strips firm the board's finding of public use

[00:11:52] Speaker 00:
Oh, I'm sorry.

[00:11:55] Speaker 00:
Should I wait for a second?

[00:11:56] Speaker 00:
I didn't realize that would be moving over.

[00:12:02] Speaker 02:
Please proceed.

[00:12:03] Speaker 00:
I proceed.

[00:12:03] Speaker 00:
Thank you very much.

[00:12:05] Speaker 00:
Your honors, and may it please the court.

[00:12:06] Speaker 00:
This court should affirm the board's finding of public use based on the non-confidential display and advertisement of the claimed plant at a Home Depot event.

[00:12:15] Speaker 00:
This type of public display without any confidentiality of restrictions falls directly within the type of activity

[00:12:21] Speaker 00:
the public use doctrine was designed to encompass.

[00:12:24] Speaker 00:
And Wing Gen has forfeited its sole argument on appeal that the genetic features of the plant were hidden and therefore that the plant was not publicly accessible.

[00:12:33] Speaker 00:
Now, Wing Gen has pointed to the fact that it raised throughout prosecution the argument that the public did not have possession.

[00:12:41] Speaker 04:
Can I ask you a question?

[00:12:43] Speaker 04:
I did not see the board.

[00:12:45] Speaker 04:
concluding or you arguing here that in the absence of forfeiture, it would be legally irrelevant anyway whether the genetic features were sufficiently understandable by the members of the public who were at the event.

[00:13:08] Speaker 00:
That is correct, Your Honor.

[00:13:10] Speaker 00:
The board followed the Day v. Sinovian case, and we did as well.

[00:13:15] Speaker 00:
And in that case, it states that all the claimed features must be placed in the public's possession.

[00:13:23] Speaker 00:
And here, as the board found in its claim construction portion of the decision, the claimed features, it includes this genetic genotype, and that the plant phenotype is directly the result of the genotype.

[00:13:36] Speaker 00:
And so we are not arguing.

[00:13:38] Speaker 04:
Right, so just to, I think I understand that.

[00:13:44] Speaker 04:
I'm trying to understand how that would fit with the notion.

[00:13:48] Speaker 04:
I think that Judge Laurie articulated earlier that the use of the plant, that the plant is ornamental.

[00:13:57] Speaker 04:
Its display is a public use.

[00:14:01] Speaker 04:
I think I'm hearing you saying more would be required had the more been properly argued to the board.

[00:14:10] Speaker 00:
So I appreciate Judge Laurie's

[00:14:13] Speaker 00:
hypothetical with respect to the insecticide with the chemical structure being in use.

[00:14:18] Speaker 00:
And I think that makes sense with the fact here that the plant was on display, and that's really the entire use of an ornamental plant.

[00:14:27] Speaker 00:
So we welcome this court's guidance with respect to whether or not the fact that the genetic features, which is a claimed recited element, also needs to be informed or discerned by the people viewing it.

[00:14:42] Speaker 00:
We are just simply going off of the statement in the day case where it said all the claimed features needed to be discerned.

[00:14:48] Speaker 00:
And in that case, it was, I believe, a drug that was given in a clinical trial.

[00:14:54] Speaker 00:
And the people that took the drug were the users.

[00:14:57] Speaker 00:
And they were not sophisticated enough and never informed of the actual chemical makeup of the drug.

[00:15:03] Speaker 00:
So it was deemed not a public use.

[00:15:05] Speaker 00:
So I'd say that was the analogy that we were working off of in this court's precedent.

[00:15:09] Speaker 00:
But I do understand the fact, and I agree, that the display and advertisement of a plant in its normal use does seem like the direct thing that should fall under the public use doctrine.

[00:15:23] Speaker 00:
And here, there was never an argument that this claimed genetic features were hidden.

[00:15:29] Speaker 00:
The board never had the ability to address that factual aspect.

[00:15:35] Speaker 00:
All that was ever argued was that

[00:15:37] Speaker 00:
The public was not put in possession.

[00:15:40] Speaker 00:
And for example, that was repeatedly argued.

[00:15:44] Speaker 04:
Can I just understand that the word possession has these at least two uses in our law.

[00:15:53] Speaker 04:
One is physical possession of the plant so that somebody could actually be holding the thing, which I think is what Council on the other side was talking about earlier.

[00:16:04] Speaker 04:
But then there's this other notion of possession used in written description law.

[00:16:09] Speaker 04:
that includes mental possession of the combination of elements.

[00:16:17] Speaker 04:
Which are we talking about here?

[00:16:19] Speaker 00:
So I'd say that would be a great question for Winn-Gen's counsel, because all we have is the argument.

[00:16:24] Speaker 00:
And for example, in their appeal brief at Appendix 1699, they say they were not put in possession of the invention and could not practice or use the invention.

[00:16:34] Speaker 00:
So this argument is not mean with particularity, as evidenced by Your Honor's kind of question about what they actually were arguing.

[00:16:43] Speaker 00:
Were they arguing you didn't have it?

[00:16:45] Speaker 00:
Were they arguing you couldn't possess the phenotype, meaning you did not have a mental knowledge of the phenotype?

[00:16:51] Speaker 00:
Or were they arguing, as they are saying now, that you did not possess the genotype, meaning that you did not have the mental ability to discern what the genotype is?

[00:17:00] Speaker 00:
And under this court's decision in Bradium Technologies,

[00:17:03] Speaker 00:
You really do need to argue in order to preserve an argument with particularity.

[00:17:07] Speaker 00:
And here, saying just generally, you did not have possession is either saying you did not have possession physically or just generally, you did not have mental possession.

[00:17:19] Speaker 00:
Did not argue with particularity what it's saying now, which is you did not know about the genotype.

[00:17:25] Speaker 00:
And it really shows the stark contrast between that general statement that they say about possession

[00:17:31] Speaker 00:
And they're opening brief now at, for example, 24 to 26, where they talk about not knowing about genotypes, single half dominant genes, heredity, not having intermediate phenotypes, breeding samples, et cetera.

[00:17:45] Speaker 00:
There's a really stark contrast here between what was argued below and what's being argued now.

[00:17:52] Speaker 04:
Can I ask you, this is a pre-AIA case?

[00:17:54] Speaker 00:
Is that right?

[00:17:56] Speaker 00:
That is correct.

[00:17:57] Speaker 00:
Actually, I'm sorry.

[00:18:00] Speaker 00:
It's a read issue, so yes, it is a pre-AIA case.

[00:18:05] Speaker 04:
The reason I ask is that one important piece of the AIA change to 102 was the addition of this otherwise available to the public, which the Supreme Court in Helsing said didn't make any difference for purposes of unseating a pre-AIA clearly established body of law about secret art.

[00:18:27] Speaker 04:
I'm not sure we have a pre-AIA clearly established answer to the circumstances here as indicated by

[00:18:35] Speaker 04:
your and the board's following day as seeming to require some kind of possibly additional information conveyed.

[00:18:44] Speaker 04:
And I wonder if the new AIA language might contribute to a resolution of this kind of issue in a proper case on a going forward basis.

[00:18:57] Speaker 00:
That is certainly possible.

[00:18:58] Speaker 00:
It is not something that we've examined or that I have considered here.

[00:19:04] Speaker 00:
But it is a question with respect to the secrecy behind the genetic factors and whether or not just the public display of it in all of its intended use would be sufficient for public use.

[00:19:19] Speaker 00:
But as Your Honor mentioned, we were working off of this court's precedent in the Day case.

[00:19:25] Speaker 00:
And that case was followed in the Delano Farms case.

[00:19:29] Speaker 00:
There is an argument.

[00:19:31] Speaker 00:
that they made throughout prosecution regarding Delano Farms.

[00:19:35] Speaker 00:
But the main portion of Delano Farms that the examiner was relying on, for example, at appendix 1473 to 1474, was the end of Delano Farms, where it's talking about the great varieties on the side of the road.

[00:19:48] Speaker 00:
And there was not a public use found in that case, because the court found no one would be able to discern what those great varieties were just by driving by it.

[00:19:58] Speaker 00:
And that's analogous here, except we come out the other way, is whether or not someone would be able to determine what the claimed plant was based on the display.

[00:20:08] Speaker 00:
They never made an analogy.

[00:20:09] Speaker 00:
The examiner said, I'm looking at Delano Farms.

[00:20:13] Speaker 00:
I'm talking about the public driving by the great varieties in Delano Farms.

[00:20:17] Speaker 00:
So this is distinguished from talking about proven winners being the people that were making the use.

[00:20:24] Speaker 00:
Now I'm talking about the public.

[00:20:25] Speaker 00:
meaning the attendees of the Home Depot event, in this case, members of the public were clearly informed of the claimed features of Cherry Star, and there was never a response, never an argument as they're making now regarding the need for genotype, breeding examples, hereditability.

[00:20:42] Speaker 00:
And then the board again raised this issue, a door and oral argument, and again, never responded with any of the examples that they're saying now,

[00:20:53] Speaker 00:
And as your honors pointed out, there was never an argument that the board's rejection was a new ground of rejection.

[00:20:59] Speaker 00:
And Wingen did not follow the agency's procedures that would have allowed them to say, we believe this is a new ground of rejection.

[00:21:07] Speaker 00:
If we had known this was coming, this is all the evidence that we would have put forward, and thus allowed the board to do its job as the person to look at these facts in the first place.

[00:21:17] Speaker 02:
Are you saying that mere public display without confidentiality

[00:21:23] Speaker 02:
is sufficient, or is that not your view?

[00:21:27] Speaker 00:
Your Honor, I believe that public use, while a question of law, has certain factual underpinnings.

[00:21:33] Speaker 00:
So here, whether there's a public display here without any confidentiality restrictions showing the claimed features of the invention, was that public use?

[00:21:43] Speaker 00:
Yes.

[00:21:43] Speaker 02:
But each case was all under- What do you mean by showing the claimed features of the invention?

[00:21:48] Speaker 02:
One of the claimed features here is single half dominant gene.

[00:21:53] Speaker 02:
And that is not shown by displaying, I assume, by displaying the flower in public.

[00:22:00] Speaker 00:
So Your Honor, that is the argument that we argue is forfeited.

[00:22:04] Speaker 00:
But if this court declines to find forfeiture and reaches the merits of Wenzhen's arguments, first we'd argue that they do lack merit because it's entirely based on attorney argument.

[00:22:13] Speaker 00:
There's no citation to the evidence that shows that you aren't able to discern

[00:22:19] Speaker 00:
the genotype.

[00:22:20] Speaker 00:
And I'm not talking about you or me, but I'm talking about the event attendees, which are the wholesale growers that have a certain amount of knowledge and skill regarding plant breeding and would have knowledge about this being not a wild type plant, possibly mutation, possibly a hybrid.

[00:22:39] Speaker 00:
There's all that evidence that the board did not have a chance to pass upon in the first instance.

[00:22:45] Speaker 00:
So under this factual scenario of this case,

[00:22:48] Speaker 00:
We believe if the court declines the fine forfeiture, overlooks the fact that all of Wing Gen's arguments are attorney argument, and the fact that they failed to address the skill of the art, we believe the most appropriate recourse would be to remand the board to either allow them to address these facts in the first instance, or to address the eternal alternative argument that it declined to address.

[00:23:10] Speaker 00:
This is the commercial exploitation issue.

[00:23:18] Speaker 00:
with one final point with respect to Epstein, which opposing counsel had raised, and I believe that he's referring to the board citation of Epstein in its decision on Appendix 35.

[00:23:32] Speaker 00:
That was not in any way a confusion of commercial exploitation and public use.

[00:23:39] Speaker 00:
All that was saying is that there's no requirement in a public use for an enablement inquiry.

[00:23:44] Speaker 00:
And that's the citation to Epstein.

[00:23:48] Speaker 00:
the discussion all surrounding that citation all apply the correct law starting back on Appendix 31 where they cite the day case, they cite the next day the Conrad case, they talk about public use.

[00:24:04] Speaker 00:
So it's very clear from the board's decision that they were talking about public accessibility and not mixing up commercial exploitation.

[00:24:12] Speaker 00:
And that's also shown by the fact that at the very beginning it said we don't need to address commercial exploitation.

[00:24:17] Speaker 00:
So I don't really see how the citation to Epstein really changes that fact.

[00:24:22] Speaker 02:
And I think you just said enablement is not required for public use.

[00:24:29] Speaker 00:
Correct, Your Honor.

[00:24:30] Speaker 00:
So there was no requirement that any of the event attendees need to be able to go home and make this plant.

[00:24:35] Speaker 00:
They would just need to be able to discern that it was due to the genetic features, if Your Honors continue to agree that that is a requirement.

[00:24:45] Speaker 00:
And we do set forth on our brief on pages 20 through 25, kind of some of the evidence that is in the record.

[00:24:52] Speaker 00:
Obviously, the board did not address this, but there is significant evidence in the record showing how a skilled wholesale grower, what knowledge they would have had about plant breeding that could allow them to come to the conclusion upon seeing this plant and the advertisement that it was due to a single half dominant gene.

[00:25:13] Speaker 00:
As in conclusion, because no arguments are ever made about breeding or genotype, we do ask that the court affirm and find Wingen's arguments forfeited.

[00:25:22] Speaker 00:
I'm happy to answer any other questions or see the remainder of my time.

[00:25:28] Speaker 02:
Thank you.

[00:25:29] Speaker 02:
Thank you.

[00:25:30] Speaker 02:
Mr. Pacino has some rebuttal time.

[00:25:35] Speaker 01:
Thank you, Your Honor.

[00:25:38] Speaker 01:
Picking up where we left off was the citation.

[00:25:40] Speaker 01:
Ms.

[00:25:42] Speaker 01:
Cruller is correct.

[00:25:43] Speaker 01:
It is 1699.

[00:25:44] Speaker 01:
It's the citation to Delano Farms in the bottom of the first full paragraph.

[00:25:49] Speaker 01:
And the same argument was made on 1518 before the examiner in that position.

[00:25:53] Speaker 02:
Can Ms.

[00:25:54] Speaker 02:
Cruller hear your argument?

[00:25:56] Speaker 02:
I'm sorry, can you say again?

[00:26:00] Speaker 02:
Yes, Your Honor.

[00:26:01] Speaker 02:
All right.

[00:26:01] Speaker 02:
While you were speaking,

[00:26:02] Speaker 02:
Sort of softly, I just wanted to make sure opposing counsel could hear you.

[00:26:07] Speaker 02:
Apparently, she does.

[00:26:09] Speaker 01:
Sorry, Judge.

[00:26:10] Speaker 01:
I misheard you.

[00:26:12] Speaker 01:
So that's the citation we were talking about.

[00:26:14] Speaker 01:
And in addition, a couple pages later, in 1703, we argued in figure form about the Lundy's.

[00:26:23] Speaker 01:
And they're the growers who actually grew out and took the plant material and grew it in Delano Farms.

[00:26:29] Speaker 01:
in the analogy.

[00:26:30] Speaker 01:
And regardless of what we said, I think we got the examiner to not maintain that rejection on appeal.

[00:26:37] Speaker 01:
What the solicitors, Ms.

[00:26:39] Speaker 01:
Quillers, decided to 14 whatever was the penultimate rejection regarding a different party.

[00:26:47] Speaker 01:
That was regarding what Judge Toronto was saying earlier.

[00:26:50] Speaker 01:
the proof of winners, folks.

[00:26:52] Speaker 01:
That rejection was raised and dropped.

[00:26:55] Speaker 01:
So that citation about having the gene and ability to reproduce, that was made and dropped by the examiner.

[00:27:02] Speaker 01:
So it wasn't relevant here.

[00:27:03] Speaker 01:
And as far as there's no enablement requirement, here the accessibility, according to Epstein, was found in commerce, right?

[00:27:13] Speaker 01:
Or the accessibility in Baxter was because the NIH inventor invented that centrifuge himself.

[00:27:19] Speaker 01:
things of that nature, the kaleidoscope case, the Beachcomber case, just being able to inspect a loggered possession of the Jetson claimed sole element of some sort of cylindrical tube.

[00:27:30] Speaker 01:
And throughout all this, what we've tried to do is we argued our best under the factors that inform the public use inquiry in this analysis.

[00:27:43] Speaker 01:
We were consistent about that throughout, and in this case,

[00:27:48] Speaker 01:
We feel it would be manifestly unfair to find that we didn't argue.

[00:27:53] Speaker 01:
And if there's any other questions I'm willing to answer, my time's running low.

[00:28:00] Speaker 02:
Well, thank you.

[00:28:02] Speaker 02:
We have your argument.

[00:28:03] Speaker 02:
And the case is submitted.