[00:00:00] Speaker 00:
The next case for argument is 22-1335, Schwendeman versus Stahl.

[00:00:08] Speaker 00:
Please proceed.

[00:00:09] Speaker 00:
May it please the court.

[00:00:11] Speaker 00:
The formula books that issue here corroborate Jody's testimony.

[00:00:15] Speaker 00:
The board found that an unwitnessed notebook cannot corroborate an inventor's testimony.

[00:00:21] Speaker 00:
But the cases actually say an unwitnessed notebook cannot corroborate an inventor's testimony without something more.

[00:00:28] Speaker 00:
That something more.

[00:00:30] Speaker 01:
Do you have any case law to distinguish lab notebooks from formula books?

[00:00:33] Speaker 01:
You used the terminology formula books.

[00:00:36] Speaker 00:
And the reason we were making that distinction is in the cases where the board is relying on the cases where they say lab notebooks, those are like inventor diaries.

[00:00:46] Speaker 00:
Those were notebooks that were handed to the inventor that were the inventor's personal notebooks.

[00:00:51] Speaker 00:
The reason we were using Formula Books 1 is what they were called.

[00:00:54] Speaker 00:
But the fundamental distinction here is these notebooks were for the group.

[00:01:00] Speaker 00:
They were in the lab.

[00:01:01] Speaker 00:
People put their formulations and their observations in.

[00:01:06] Speaker 00:
They were dated for the most part.

[00:01:09] Speaker 00:
They were dated, but different people accessed the notebooks.

[00:01:11] Speaker 00:
They were kept there.

[00:01:13] Speaker 00:
And so it has all of the same, it has something more here, just like a witness signature is, because it was in a public place, because different people wrote on it, there's the same credibility you get for why it's not fake, why people can't go back and revise, you have with the formula book, because it's in a public location, different people are writing in it.

[00:01:36] Speaker 01:
So the actual distinction you're drawing is really that there are multiple people writing in it?

[00:01:41] Speaker 00:
Yes, multiple people write in it with dates, and it's kept for the group.

[00:01:45] Speaker 00:
That's the distinction we're drawing.

[00:01:47] Speaker 00:
Because the case law that's being discussed really is for the board's decision exclusively inventor lab notebooks where it's their personal diary, they're writing on it, and those were unwitnessed.

[00:02:01] Speaker 00:
And here, because the inventor notebooks are shared by the team, they included subsequent dated entries from different people, they provide the same kind of credibility that a witness signature would.

[00:02:16] Speaker 00:
They corroborate the sequence of timing.

[00:02:18] Speaker 01:
But just to close the loop on my original question, you don't have any case law that specifically distinguishes what you described as formula books from lab notebooks.

[00:02:26] Speaker 00:
I don't, Your Honor.

[00:02:28] Speaker 00:
I do not.

[00:02:30] Speaker 00:
But again, the case law is clear that it's really something more.

[00:02:34] Speaker 00:
And one thing everybody focuses in on is witness signatures.

[00:02:37] Speaker 00:
But as I said, because they were shared by a team, because they had subsequent dated entries, they provide the same type of credibility, corroboration,

[00:02:47] Speaker 00:
that a witnessed lab notebook would.

[00:02:52] Speaker 00:
And for that reason, the PTAB was free to question the weight that ought to be assigned to these documents.

[00:02:58] Speaker 00:
But the PTAB was not permitted to dismiss them categorically, as if they were just an inventor-author diary with no hallmarks or credibility.

[00:03:09] Speaker 00:
The other issue that I'll briefly address is the board erred in holding the claims unpatentable over degrees.

[00:03:17] Speaker 00:
De Vries used the word softening and not the word melting.

[00:03:21] Speaker 00:
Yet the P-Tab read softening to mean melting, and there's no substantial evidence to support that reading.

[00:03:27] Speaker 00:
The P-Tab only points to a phrase in the De Vries patent where De Vries explains that the relevant layer will, quote, soften and penetrate into the fabric.

[00:03:38] Speaker 00:
But as the evidence has shown, it can penetrate whether it softens or melts.

[00:03:43] Speaker 00:
And De Vries described it as softens.

[00:03:46] Speaker 00:
The board picked Melting because of Stahl's expert, who so testified.

[00:03:51] Speaker 00:
But he offered no citation, he offered no explanation, and he offered no argument that Melting would even work in the context of this invention.

[00:04:00] Speaker 00:
It's just a naked assertion.

[00:04:02] Speaker 00:
In fact, if the layer melted, then DeVries' solution wouldn't work.

[00:04:06] Speaker 00:
I'm happy to talk about that, but for now, all I need to show you is there's no substantial evidence to support the board's conclusion.

[00:04:13] Speaker 00:
It's simply a naked argument, and that means you must remand.

[00:04:17] Speaker 00:
And just to be clear, DeVries himself knew how to make this distinction.

[00:04:21] Speaker 00:
He described another layer in his invention as, quote, molten, which tells you he knew the difference between soften and melt.

[00:04:30] Speaker 00:
Finally, Stahls will argue that our expert Ellison testified that DeVries disclosed melting.

[00:04:36] Speaker 00:
But Stahls knows that our expert was using a definition of melting that included softening.

[00:04:42] Speaker 00:
They know it because it's explicit in his deposition transcript.

[00:04:45] Speaker 00:
So Stahls' presentation of that issue to this panel is at best misleading.

[00:04:51] Speaker 00:
In Ellison's expert report, using the definition of melting from the claim construction, Ellison made clear that DeVries does not disclose melting, unless you have other questions.

[00:05:02] Speaker 00:
Thank you.

[00:05:12] Speaker ?:
I'm done.

[00:05:16] Speaker 03:
Can you please record, Your Honor, Glenn Thorbis for Stahls.

[00:05:20] Speaker 03:
So on the first issue of corroboration, when an inventor tries to square behind a reference, you have to have independent corroboration of that testimony.

[00:05:29] Speaker 03:
And the law is very clear that independent corroboration can't include the inventor's own unwitnessed documents alone.

[00:05:40] Speaker 03:
And that's what we have here.

[00:05:42] Speaker 03:
The board made a finding of fact that the formula books were, in fact, not independent evidence.

[00:05:50] Speaker 03:
Why was that?

[00:05:51] Speaker 03:
The board pointed to the fact that the formula books were maintained by, stored by, and ultimately produced in the litigation by Ms.

[00:05:58] Speaker 03:
Schwendeman.

[00:06:00] Speaker 03:
No other witness in the entire proceeding testified about the formula books.

[00:06:05] Speaker 03:
Only Ms.

[00:06:06] Speaker 03:
Schwendeman.

[00:06:07] Speaker 03:
not a single page in the formula books was witnessed.

[00:06:12] Speaker 03:
So, what are we left with?

[00:06:16] Speaker 03:
Council says, well, these have hallmarks of reliability because multiple people wrote in them.

[00:06:22] Speaker 03:
Well, there's two problems with that.

[00:06:25] Speaker 03:
The first problem is that Ms.

[00:06:27] Speaker 03:
Schwendeman, when she did testify about these formula books, couldn't identify who wrote on which pages, who wrote where,

[00:06:36] Speaker 03:
or even what pages she wrote on.

[00:06:40] Speaker 03:
And the board was quite clear to point that out.

[00:06:43] Speaker 03:
The second problem with that is that Ms.

[00:06:45] Speaker 03:
Schwendeman's testimony alone is insufficient legally to explain that very point, because it's her testimony.

[00:06:55] Speaker 03:
She can't explain the very evidence that she's relying upon to corroborate her own testimony.

[00:07:00] Speaker 03:
So that's two problems with it.

[00:07:03] Speaker 02:
Do you agree with your adversary's characterization of the board's decision as categorically rejecting the books?

[00:07:11] Speaker 03:
I don't, Your Honor.

[00:07:12] Speaker 02:
As insufficient?

[00:07:13] Speaker 03:
No, I don't, Your Honor.

[00:07:15] Speaker 03:
The board looked at a couple of things.

[00:07:17] Speaker 03:
Are these lab notebooks that have been witnessed the board found as a factual matter or not?

[00:07:21] Speaker 03:
Then the board went on to say that these are not independent evidence either.

[00:07:25] Speaker 03:
So the board kind of took it in two steps.

[00:07:28] Speaker 03:
And so the board considered whether or not the lab notebooks, the formula books, whatever you want to call them, would be considered independent evidence.

[00:07:36] Speaker 03:
And that's when the board looked at where were these books kept?

[00:07:40] Speaker 03:
Who kept them?

[00:07:41] Speaker 03:
Who wrote in them?

[00:07:42] Speaker 03:
Can we even identify a page when somebody wrote on them that we can put a name to?

[00:07:47] Speaker 03:
And the answer was no to all of that.

[00:07:50] Speaker 03:
You know, in the briefing, counsel said, this is really a case of first impression.

[00:07:55] Speaker 03:
And your honor asked, is there any case law on this?

[00:07:58] Speaker 03:
In fact, there is case law on this.

[00:07:59] Speaker 03:
It really kind of gets to all fours.

[00:08:02] Speaker 03:
It's the Medicham case.

[00:08:04] Speaker 03:
It's at 437, F3rd, 1157, at pages 1172 to 1173.

[00:08:09] Speaker 03:
And this is a case that was actually cited by counsel from Ms.

[00:08:14] Speaker 03:
Schwendeman.

[00:08:16] Speaker 03:
And in that case,

[00:08:18] Speaker 03:
An inventor purporting to try to swear behind prior art and claim an earlier filing date had her own lab notebook.

[00:08:26] Speaker 03:
Nothing was witnessed.

[00:08:27] Speaker 03:
And so the court said, that lab notebook can't, as a matter of law, corroborate your testimony.

[00:08:34] Speaker 03:
But the inventor also tried to introduce a second lab book, a lab book of a non-inventor.

[00:08:41] Speaker 03:
And that's effectively what we have being argued here, is that this lab book is, the formula books are lab books of non-inventors, because it's the inventors and the Schwendemann writing in it.

[00:08:53] Speaker 03:
And so in the Medichem case, the inventor tried to introduce the lab notebooks of a non-inventor.

[00:09:01] Speaker 03:
And the testimony was that both the non-inventor and the inventor wrote in that other lab book.

[00:09:10] Speaker 03:
And so what the Federal Circuit said is that those pages on which the inventor wrote couldn't corroborate her testimony because they're her writings.

[00:09:21] Speaker 03:
The pages on which a non-inventor wrote, to the extent they have any corroborative evidence whatsoever, they could not rely upon the inventor's testimony to tell them which pages the non-inventors wrote on versus the inventors, which is exactly what we have here.

[00:09:37] Speaker 03:
Because in Medichem, like here, nobody testified about the non-inventor's book other than the inventor.

[00:09:44] Speaker 03:
So the Medichem case is really on all fours here.

[00:09:53] Speaker 03:
Now, all of these findings, right?

[00:09:57] Speaker 03:
That alone is substantial evidence to support the board's finding that the formula books do not corroborate Ms.

[00:10:05] Speaker 03:
Schwinderman's testimony.

[00:10:06] Speaker 03:
But this is against the backdrop of an ever-changing story from Ms.

[00:10:13] Speaker 03:
Schwinderman about her invention.

[00:10:15] Speaker 03:
Starting in 2008, the first litigation she ever had about the case, when she testified under oath that the whole invention was made in August of 1999.

[00:10:27] Speaker 03:
And she explained why she remembered it, because it was at a meeting in a conference room with her client waiting for a solution.

[00:10:36] Speaker 03:
And she came up with the idea.

[00:10:38] Speaker 03:
Six years later,

[00:10:40] Speaker 03:
She's in an interference, and that date changes from August of 1999, gets moved back to 1996, and the formula books for the first time ever make an appearance.

[00:10:51] Speaker 03:
She's in litigation three years later in 2017, and she reaffirms this story that she has this epiphany in August of 1999 about how to make the Peel First methodology work, and that's when she invented that, but she still relies upon the lab books for 1996 for the actual apparatus for the piece of the material.

[00:11:10] Speaker 03:
We get into the IPRs here in 2021.

[00:11:14] Speaker 03:
She files declarations saying everything in my lab books, that was peel last.

[00:11:21] Speaker 03:
They write it in the brief.

[00:11:24] Speaker 03:
Two months after her declaration, I take her deposition.

[00:11:27] Speaker 03:
And for the first time ever, she says, oh, no.

[00:11:32] Speaker 03:
Back in 1996 and 1997, I did all that peel first stuff.

[00:11:35] Speaker 03:
So against that backdrop of an ever-changing story,

[00:11:40] Speaker 03:
That's unreliable.

[00:11:42] Speaker 03:
You don't have corroboration here.

[00:11:43] Speaker 03:
And the board properly found that there was substantial evidence to find that it wasn't corroborated.

[00:11:49] Speaker 02:
Her changing story or whatever you want to call it doesn't tell us anything for sure about the veracity of the formula books.

[00:11:57] Speaker 02:
Formula books exist, and there's writing in them, right?

[00:12:01] Speaker 03:
The formula books exist, and there is writing in them.

[00:12:04] Speaker 02:
And there are signatures.

[00:12:06] Speaker 02:
So we know that we may not know who they are because we can't read the signature?

[00:12:11] Speaker 02:
Is there a problem of not knowing the name of the people?

[00:12:15] Speaker 03:
There's very much a problem.

[00:12:16] Speaker 03:
We don't know who those signatures are.

[00:12:17] Speaker 02:
My point is that your litany of Ms.

[00:12:22] Speaker 02:
Jody, if we can call her that, memory lapses to me is not really pertinent to us deciding the core of the matter.

[00:12:30] Speaker 02:
I understand why you're doing it.

[00:12:31] Speaker 02:
But people do have faulty memories.

[00:12:35] Speaker 02:
So we have in front of us a document, a formula book, right?

[00:12:39] Speaker 02:
And the question is, and then we have her testimony, does it corroborate?

[00:12:42] Speaker 02:
Right.

[00:12:43] Speaker 02:
It's unlike, it's not hers, all hers.

[00:12:48] Speaker 02:
In fact, she hasn't written any of it, has she?

[00:12:51] Speaker 03:
No, we don't know that.

[00:12:52] Speaker 03:
She said that she wrote some, other people wrote some, and she can't tell which one is hers and which one is theirs, but whoever that might be.

[00:13:01] Speaker 03:
There's no question that she said that she wrote in the book herself as well.

[00:13:06] Speaker 03:
She's the inventor after all, right?

[00:13:08] Speaker 02:
And so what you do is have as a couple of... So you basically have an open book, sort of like a question, you know, a complaint box, and people who are working on the project make writings in it.

[00:13:20] Speaker 03:
That is the testimony, again, but we only know that because Ms.

[00:13:23] Speaker 03:
Schwindleman testified about it, and she's an interested, she's obviously the inventor.

[00:13:27] Speaker 03:
So I would submit that the law doesn't permit you to even rely upon her testimony for that matter.

[00:13:32] Speaker 02:
Well, the board didn't find her incredible, right?

[00:13:35] Speaker 03:
The board what?

[00:13:35] Speaker 02:
Didn't find her incredible.

[00:13:37] Speaker 02:
They didn't say, we can't believe anything she says because she changes her mind.

[00:13:40] Speaker 03:
No, what they did say, though, is that because of the changing testimony, that this is a hallmark case for why corroboration is necessary.

[00:13:47] Speaker 03:
And it's not only because you have formulas in the book.

[00:13:50] Speaker 02:
So you have the books, and you have different people writing in it, because we know that the handwriting is different, and apparently the signature is different.

[00:13:58] Speaker 02:
We don't know who wrote who, the who.

[00:14:01] Speaker 03:
Right, and you only have a couple, that's true, and you only have a couple of the samples where you have a signature at all.

[00:14:07] Speaker 03:
Many of them have no signature.

[00:14:09] Speaker 03:
And Ms.

[00:14:11] Speaker 03:
Wendman has not even identified, this is the page.

[00:14:14] Speaker 03:
This is the one that corroborates my testimony, so that we can even zero in on, does that particular page have a signature?

[00:14:22] Speaker 03:
Or who might that be that has a signature?

[00:14:25] Speaker 03:
So it's just faulty evidence in total.

[00:14:29] Speaker 03:
And the other reason that this is important and her changing testimony is important is because we're not only talking about claims directed to the

[00:14:36] Speaker 03:
to the sheet.

[00:14:38] Speaker 03:
We're talking about method claims as well, right?

[00:14:41] Speaker 03:
And so there's two things.

[00:14:42] Speaker 03:
When you look at this formula book, you can't tell, you can't look at it.

[00:14:46] Speaker 03:
They don't line up one for one with the claim.

[00:14:48] Speaker 03:
You have to do an interpretation of the formula book.

[00:14:52] Speaker 03:
And the only person that does the interpretation of the formula book to tell us what the formula book means is Ms.

[00:14:58] Speaker 03:
Renneman.

[00:14:59] Speaker 03:
She's the one who says, if you look at this line in the formula book, this is an interceptive layer.

[00:15:05] Speaker 03:
This line in the book is a white layer.

[00:15:07] Speaker 03:
This is melt and mix.

[00:15:10] Speaker 03:
This is why we must have done it with peel first.

[00:15:14] Speaker 03:
She's the only one that testifies about that.

[00:15:16] Speaker 03:
So there isn't a formula book that says that you can lay aside the claims one for one and say it corroborates your testimony.

[00:15:24] Speaker 03:
You need the interpretation.

[00:15:25] Speaker 03:
And nobody does that other than her.

[00:15:31] Speaker 03:
And I do want to make the point, too, that all this changing testimony is particularly suspect, right, because when she filed the first patent application in September of 1999, it didn't have anything about peel-first methodology.

[00:15:49] Speaker 03:
It didn't have anything in there about melt and mix, right?

[00:15:52] Speaker 03:
So it's all suspect for those reasons.

[00:15:56] Speaker 03:
And so the bottom line is, with all of that background,

[00:15:59] Speaker 03:
I think that the board clearly had substantial evidence to find that the lab notebooks, formula books, whatever you want to call them, were insufficient, independent evidence to corroborate Ms.

[00:16:10] Speaker 03:
Lindeman's testimony.

[00:16:12] Speaker 03:
So the second point is degrees.

[00:16:15] Speaker 03:
And on degrees, there's only one issue.

[00:16:19] Speaker 03:
De Vries has a polymeric layer that is shown to be pressed against a shirt and a teat applied.

[00:16:25] Speaker 03:
And De Vries teaches explicitly that that polymeric layer penetrates into the shirt.

[00:16:34] Speaker 03:
And so the only question is, did the board have substantial evidence to conclude that the teaching of the polymeric layer penetrating into the shirt taught a person of ordinary skill in the art

[00:16:47] Speaker 03:
that that polymeric layer melted?

[00:16:50] Speaker 03:
That's the only question.

[00:16:52] Speaker 03:
And the answer to that is there's substantial evidence to support the board's conclusion that it did.

[00:16:58] Speaker 03:
That substantial evidence is threefold.

[00:17:02] Speaker 03:
Dr. Scott's testimony explicitly said that the polymeric layer in debris must melt in order to perform the function of bonding that layer to the shirt.

[00:17:15] Speaker 03:
And so

[00:17:16] Speaker 03:
And DeVries specifically says when that material penetrates the shirt, its purpose is to bond to the shirt.

[00:17:23] Speaker 03:
Dr. Scott said, if it's going to bond to the shirt, it needs to melt first.

[00:17:28] Speaker 03:
Ms.

[00:17:28] Speaker 03:
Schwendeman actually confirms that in her testimony.

[00:17:32] Speaker 03:
Ms.

[00:17:32] Speaker 03:
Schwendeman testified that when I asked her in deposition, why does the layer need to melt?

[00:17:38] Speaker 03:
Why does the white layer need to melt in your invention?

[00:17:41] Speaker 03:
She says to hold it to the shirt.

[00:17:44] Speaker 03:
Okay?

[00:17:45] Speaker 03:
The second piece of evidence is Dr. Ellison's testimony himself.

[00:17:52] Speaker 03:
Because it penetrates, that's correct.

[00:17:54] Speaker 02:
And to penetrate, it needs to melt.

[00:17:58] Speaker 03:
That's correct.

[00:17:59] Speaker 03:
And that's the testimony of Dr. Scott, and that's the same testimony of their expert Dr. Ellison.

[00:18:03] Speaker 03:
When I asked him in his deposition specifically, I said, and for it to meld into the fabric, for the polymeric layer to meld into the fabric, for it to go into the fabric, doesn't the polymeric layer 22 have to melt first?

[00:18:17] Speaker 03:
And he answered, yes.

[00:18:19] Speaker 03:
And I followed it up, and I said, so the heat is applied, the polymeric layer 22 melts, moves into the fabric, and then if cross-link is used, cross-linking occurred at that point after the melting process, correct?

[00:18:34] Speaker 03:
And his answer, Dr. Ellison's answer, was yes.

[00:18:37] Speaker 03:
So you have both experts in agreement.

[00:18:40] Speaker 03:
And this argument about, well, he was using a different definition of melt that can include soften.

[00:18:46] Speaker 03:
Look at the brief.

[00:18:47] Speaker 03:
Two days later, he was asked in the same deposition.

[00:18:50] Speaker 03:
It was a continuation of the same deposition.

[00:18:51] Speaker 03:
He was asked by his own counsel, when you testified about the prior art, what definition of melt were you using?

[00:18:58] Speaker 03:
And he said, it did not include softening.

[00:19:02] Speaker 03:
And that was explicit.

[00:19:04] Speaker 03:
And the last piece of evidence on this point is the following.

[00:19:08] Speaker 03:
Ms.

[00:19:08] Speaker 03:
Schwendeman's own test for whether the layers melted was the observation of the final product.

[00:19:18] Speaker 03:
So when she testified about how did she know her products melted when she did all of her samples back in the 90s.

[00:19:27] Speaker 03:
Her answer was, well, because they had softness.

[00:19:31] Speaker 03:
And you heard that in the previous argument.

[00:19:33] Speaker 03:
Good washability, good bonding.

[00:19:37] Speaker 03:
That's the only reason that she knew.

[00:19:38] Speaker 03:
That was the test that she applied to her own products.

[00:19:42] Speaker 03:
Well, when you look at DeVries, he has exactly the same results.

[00:19:47] Speaker 03:
Multiple times in DeVries, and we've cited him in the brief, he says, and I'll quote one of them, he says, virtually all of the polymer was embedded between the fibers of the cotton thread.

[00:19:57] Speaker 03:
The hand of the material was soft before and after washing, where ability of the transferred image was judged to be good.

[00:20:06] Speaker 03:
I'm sorry, washability of the transferred image was judged to be good.

[00:20:09] Speaker 03:
And I've said in a number of places, four or five places where that's cited.

[00:20:13] Speaker 03:
So all of that evidence goes to the fact that penetrating, a person of ordinary skill and art would understand penetrating to require melting.

[00:20:21] Speaker 00:
Thank you.

[00:20:21] Speaker 03:
Thank you.

[00:20:33] Speaker 00:
I just have a couple of points.

[00:20:35] Speaker 00:
On the Medicare case, you can look at the case yourself.

[00:20:38] Speaker 00:
It's all personal lab notebooks that each inventor kept.

[00:20:42] Speaker 00:
It's not a group lab notebook like the one that we're talking about here.

[00:20:45] Speaker 00:
And only the main distinction, and it's a factual distinction I'm making, is here.

[00:20:50] Speaker 00:
And the testimony came out this way.

[00:20:53] Speaker 00:
Jody or the co-inventor might have told somebody at the lab to do a certain formula.

[00:20:58] Speaker 00:
They did the formula.

[00:20:59] Speaker 00:
They wrote it into the book.

[00:21:00] Speaker 00:
When they did the testing, they wrote the results into the book.

[00:21:03] Speaker 00:
And then they were dated, generally.

[00:21:07] Speaker 00:
Some of them were initial.

[00:21:08] Speaker 00:
But you can see from the different handwriting, it's self-authenticating in that you can see different people have written it.

[00:21:14] Speaker 00:
inference from that book.

[00:21:16] Speaker 00:
You don't need any more testimony.

[00:21:18] Speaker 00:
In terms of explaining the formula, yeah, she explained them, but that's the main reason, that's the fundamental differences.

[00:21:26] Speaker 00:
It's a book where because of the way it was kept and the way it's written, the reasons that you have for witness signatures apply to that context.

[00:21:36] Speaker 00:
Separately in terms of this peel first this method thing.

[00:21:40] Speaker 00:
I just want to be clear her testimony has always whichever Her testimony has always been she invented that method by August of 99 but all of that predates Williams no matter what and that her deposition when

[00:21:54] Speaker 00:
Council showed her more entries it came back to her and that's that's all that happened there and lastly on degrees Let me be the board's entire basis is that phrase soft soften and penetrate that's from degrees and the question really is was there substantial evidence to Define soften as being melting when the claim construction is Excludes softening and so that's all you're looking at and if you look at the

[00:22:23] Speaker 00:
If you look at Scott's declaration, you'll see that it's a naked assertion.

[00:22:29] Speaker 00:
There is no analysis for why you would take and change the word softening there to mean melting.

[00:22:35] Speaker 00:
Because Ellison even says if it softens, you can still penetrate.

[00:22:39] Speaker 00:
But there is no explanation.

[00:22:40] Speaker 00:
And that's the reason it's a naked assertion.

[00:22:42] Speaker 00:
That's all I have.

[00:22:43] Speaker 00:
Thank you.

[00:22:44] Speaker 00:
Thank you.

[00:22:44] Speaker 00:
The case is submitted.