[00:00:00] Speaker 00:
Final case for argument is 22-1730, spine holdings versus orthophagous metaphor.

[00:00:07] Speaker 00:
Good morning.

[00:00:09] Speaker 03:
Good morning.

[00:00:09] Speaker 03:
May it please the court, Miguel Hernandez for Appellant Spine Holdings.

[00:00:15] Speaker 02:
This has been interesting.

[00:00:15] Speaker 02:
What's the foundation?

[00:00:17] Speaker 02:
I'm going to ask you about three different things.

[00:00:20] Speaker 02:
One, Lynn's sketches describing post-filling the implant to create maximum graph, the sketches, right?

[00:00:28] Speaker 02:
Yes, Your Honor.

[00:00:28] Speaker 02:
What's the foundation for those?

[00:00:32] Speaker 02:
Like a legal foundation?

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Right.

[00:00:33] Speaker 03:
So the legal foundation is Lynn and Nelson.

[00:00:39] Speaker 02:
When, where, who, what, you know.

[00:00:42] Speaker 03:
Right.

[00:00:42] Speaker 03:
So April, sorry, February 2008, that's the first sketch of the drawings.

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Those are dated and signed.

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Additionally, again, we've already established date and creators.

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Anna Green, Nelson's nurse, testified that she had seen those documents and they were created.

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Then what's the foundation for Linn sketches, including a bullet nose implant and insertion tool, and a double lock screw?

[00:01:17] Speaker 03:
Same thing, Your Honor.

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They're signed and dated?

[00:01:22] Speaker 03:
Yes.

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They are signed by, or signed.

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The names of Russ Nelson, co-inventor, and Anna Green are listed at the top of that second sketch that you're talking about, Your Honor.

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They're signed.

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No, not signed by the inventors.

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However, Anna Green did testify under oath that she was there when the sketches were created.

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What's a surgery meeting?

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Surgery meeting is where the inventors and Anna Green, as she was Dr. Nelson's surgical nurse,

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they would meet before and after the surgeries and discuss the procedure.

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Specifically, though, during this period, the inventors were working on optimizing their implant.

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They had already conceived it, and now they were trying to address the shortcomings that they were seeing in the prior art, which they were performing during those surgeries.

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They were performing the prior art during the surgery.

[00:02:31] Speaker 03:
Exactly, Your Honor.

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And so during these surgeries, they would identify deficiencies.

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They would discuss, how can we address this better?

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What can we do with our implant?

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And a green testified that this was taking place during those surgeries.

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We have third-party cooperation.

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What's during the surgery?

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During those surgeries, during and after.

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They were discussing optimizing their implant.

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Are there any other foundational questions you have?

[00:03:03] Speaker 03:
So turning to the diligence, the critical period here is 20 months, which the board split into two periods, the first from February 2009 through January 2010, and the second, February 2010 to October.

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The board found diligence during the second period, so there's no need to address that here.

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The primary issue to be decided today is whether the board erred

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in not finding diligence during the first period.

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Now, spine holdings submitted documentary evidence and testimony establishing diligence during this period.

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Specifically, we have the testimony of the inventors and Anna Green, which we briefly covered during the surgeries.

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And notably, orthophics never made any effort to impeach through deposition the testimony of the inventors or Anna Green.

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It's uncontroverted testimony.

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Now to rebut this evidence, orthophics relied primarily on paid expert testimony, Dr. Paloza, that the inventors were not working on the inventions during these meetings.

[00:04:06] Speaker 00:
Those post-surgery checks that the co-inventors and the nurse wrote declarations about, as I understand it, those declarations were

[00:04:20] Speaker 00:
attention eric they didn't really say or and on this day we made this adjustment so this is how we made the new bone connected to the leg bone different previously you know what i mean right i i think you're getting at uh... and i guess the concern is why would we be able to conclude that it was unreasonable for the board to make a finding that these statements about post-surgery chats were just

[00:04:50] Speaker 00:
The descriptions of those talks were too generic and you couldn't really see behind the declarations as to what, if any, kinds of progress or concrete conversations about the device actually occurred.

[00:05:07] Speaker 03:
So a few reasons, Your Honor.

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First, we've already established if it was just inventor testimony, I admit that would be problematic.

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But again, we have third party testimony corroborating it.

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Now to the specifics,

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This happened back in 2009.

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We're talking a long time has passed.

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And I think it's important to keep in mind the context.

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We're not talking about a Fortune 500 company here with R&D departments and resources to document everything.

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We're talking about two solo inventors that were working outside their job to come up with this.

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The evidence that you would find with a larger corporation, it's not there.

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But this court has never found a problem with this type of issue because you can forgive some of the lack of specificity over a long period of time, especially when it's two solo inventors.

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That's NFC technology that I'm referring to that supports this proposition.

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And then, second... That we can forgive long gaps of time in activity between small time co-inventions?

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No, Your Honor.

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You can forgive a lack of specificity of testimony that is talking about something that happened 15 years ago.

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And again, that is supported by NFC technology.

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So what was NFC versus here in terms of the specifics of what was offered?

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NFC, it was dealing with corroborations for conception.

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But the issue that they were having there was, again, you had an inventor testifying as to what was conceived 20 years ago.

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He couldn't remember the exact

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conversations, the specifics of what was happening.

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But he did testify that, yes, these elements were there during my conception.

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And there were some corroborating documents, circumstantial, that you can infer, okay, based on his testimony, it's reasonable that there was conception.

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And the board, sorry, this court also specified that, yes, based on our precedent,

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If we can circumstantially infer that his test note is, in fact, reasonable, that constitutes corroboration.

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Turning back to the specificity, there's also another reason.

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Under the rule of reason here, we have to look at the evidence in totality.

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And it's important to note that in 2010, after the inventors engaged Flex Engineering,

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An engineer from FLEX attended surgeries with the inventors.

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There's documentary evidence.

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You can find that in Appendix 3368.

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That's Volume 2.

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Paragraph 10.

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Belenco Matsuro.

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He testified that, yes, I was trying to or I was going to

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surgeries with the inventors.

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Additionally, there's email correspondence from Bilingo.

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You can find that at appendix 3321, where he's emailing the inventor asking, hey, when's the next surgery?

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When can I go?

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So again, under the rule of reason, taking that same type of activity, which the board acknowledged is diligence,

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and comparing it to the surgeries with the inventors and the nurse, it's the same type.

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That additionally provides corroboration.

[00:08:33] Speaker 02:
Mr. Lin's purported search for graft material as evidence of diligence.

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Would the invention accommodate more than one type of graft material?

[00:08:48] Speaker 03:
Yes, Your Honor.

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There's no one type.

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However,

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it still has to perform the claimed functions.

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It still has to flow controllably into the implant.

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It still cannot just go everywhere.

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So there's implicit, there's some sort of fluid property of viscosity.

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You can't have something to... So that is the relevance to the claimed invention and his search for graph material.

[00:09:24] Speaker 03:
So turning to an additional reason, Your Honor, back to the surgery specificity, more circumstantial evidence is the inference you can draw from the improvements that were documented in that length August 2009 drawing.

[00:09:46] Speaker 00:
Again, we've pointed out that there's... Do we know it's dated August 2009?

[00:09:51] Speaker 00:
I don't think we know that, right?

[00:09:54] Speaker 03:
Okay, so I admit that the date is not on there, but again, you can infer based on the circumstantial evidence that it was created in August 2009.

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It was temporal, and there's a couple reasons.

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Number one, the inventors testified that yes, we provided this document of the configuration, in quote, at that time, as it existed at that time.

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So there's reason one why you can draw the conclusion that yes, it was August 2009.

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Second, again, there's features that were added.

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So it took time, again, you're inferring here, but based on circumstantial evidence, it took time

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to come up with these features.

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And I think we need to have an idea of what we're focusing on.

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It's not the time to actually draw it out.

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We're talking about the time to identify these features, come up with these features.

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And so that obviously took time.

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And so I'm not saying that those drawings alone account for the spinal, or corroborate the spinal surgeries, but they add another piece of evidence.

[00:11:06] Speaker 03:
It's another data point.

[00:11:08] Speaker 00:
Is it your position that those first sketches, these kind of rough sketches dated February, April 2008, reflect the state of the invention as of February 2009?

[00:11:27] Speaker 03:
No, Your Honor.

[00:11:30] Speaker 00:
Okay, I thought at one point there was an argument that February 2009, at that snapshot time, these little sketches represent the state of the invention.

[00:11:41] Speaker 03:
Right, yes, that is, we are saying that, no, I misunderstood, Your Honor, we are saying that's the baseline, that's what we're starting with here, is those sketches at the beginning of the critical period.

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That's how the airplane existed.

[00:11:57] Speaker 00:
So then there had been no progress in terms of the invention from April 2008 to February 2009?

[00:12:04] Speaker 03:
No, I respectfully disagree with that because there was other activity going in.

[00:12:09] Speaker 03:
First of all, they were still looking for the graph material that didn't start after February 2009.

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There's emails before the diligence period.

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And then second,

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I'm not saying it's irrelevant, but there would be no abandonment issue even if there was no documented advancement because abandonment only starts when the critical period starts.

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So there would be no issue of abandonment even if there was no documented improvement between February 08 and February 09.

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There's no further questions.

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I'll reserve the rest of my time, Your Honor.

[00:13:01] Speaker 01:
Good morning, Lisa Court.

[00:13:04] Speaker 01:
I think some of the difficulty with the discussion we just had is there's running across many dates some inferences being drawn in the briefing to this court that weren't really presented below.

[00:13:13] Speaker 01:
And I think it would be best to focus on was there substantial evidence that supported the board's findings of lack of diligence over the critical period, as well as the reasonableness in making the combination.

[00:13:25] Speaker 01:
One of the things that was mentioned was the search for graph material.

[00:13:29] Speaker 01:
Well, the board looked at that.

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First, they were curious about whether the claims actually required specific properties.

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But they went ahead and analyzed the corroborating evidence.

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And they found it just was incredible that they were searching for graph material over this whole period when the graph material described in the patent is demineralized bone matrix, DBM.

[00:13:47] Speaker 01:
And the evidence shows that Mr. Lin, one of the co-inventors, in fact, was a salesman for demineralized bone matrix, readily in his possession at any time.

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So there's no credibility.

[00:13:58] Speaker 01:
It wasn't corroborated.

[00:13:59] Speaker 01:
They found the evidence wasn't corroborated.

[00:14:01] Speaker 01:
They also looked to this Cabo spine investment group.

[00:14:04] Speaker 01:
That was one of the stories.

[00:14:05] Speaker 01:
They said that that was to manufacture the implant.

[00:14:08] Speaker 01:
The board looked at that evidence and said the meetings with Dr. Weiser and Timone were about their implant, a different kind of implant.

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And that's what the Cabo Society was doing.

[00:14:17] Speaker 01:
They were also looking to buy assets of a company that had gone bankrupt so they could sell those implants on the market and make money.

[00:14:23] Speaker 01:
There was no evidence that the board could find that there was any discussion about manufacturing of the proposed implant.

[00:14:31] Speaker 01:
The other is these the meetings after surgery That apparently they're during surgery, too right, but Are you saying that the cone vendors wanted to buy?

[00:14:45] Speaker 00:
the assets of vertebra so that it could sell vertebra implants and

[00:14:51] Speaker 01:
That's the co-inventors apparently were part of a larger group of investors.

[00:14:55] Speaker 01:
Was that in the emails or?

[00:14:58] Speaker 01:
Yes, the email chain with the bankruptcy attorney.

[00:15:02] Speaker 01:
Mr. Landon engaged a bankruptcy attorney to try to force her to run into

[00:15:07] Speaker 01:
Bankruptcy so they could buy their assets and they wanted to sell the peak implants.

[00:15:11] Speaker 01:
I think the board discussed that In their findings, you know an appx 127 no mention of manufacturing implants and the appx 131 They quoted that makes selling the peak inner body cage is almost impossible.

[00:15:30] Speaker 01:
They're referring to the vertebra on assets they're the ones who actually made their own peak implants and

[00:15:39] Speaker 01:
Turning back to the meetings between Dr. Nelson, Mr. Lin, and Anna Green in 2009, there are no specifics about what improvements were being discussed, what were made.

[00:15:50] Speaker 01:
There's no evidence to show what was done.

[00:15:53] Speaker 01:
The board found Anna Green's testimony really didn't corroborate it.

[00:15:56] Speaker 01:
There was not a scintilla of evidence.

[00:15:58] Speaker 01:
And in fact, found more credible the testimony from Dr. Paloza, a spine surgeon, as well as Dr. Loner, a spine holdings expert, who we did depose on this issue.

[00:16:09] Speaker 01:
And they said these were common practice, that the surgeons would have surgery.

[00:16:13] Speaker 01:
The sales rep would be in the operating theater and then they would have meetings afterwards to discuss how it went as well as what their needs were for the next surgery so the sales rep could have that ready.

[00:16:24] Speaker 01:
So there again the board found that credible.

[00:16:27] Speaker 00:
Isn't it possible though that given that these two were collaborating on a new kind of spinal implant that

[00:16:35] Speaker 00:
Mr. Lin was showing up to all these surgeries in order to see what kinds of improvements that could be made to their working model.

[00:16:44] Speaker 01:
The testimony is from the other doctors is that it's just common for the sales reps to actually be in the operating room during that time period.

[00:16:54] Speaker 01:
And so it's possible, but that's not the evidence that we have.

[00:16:58] Speaker 00:
I guess you're saying we just aren't sure.

[00:17:01] Speaker 00:
Maybe some of those meetings really were directed to trying to improve whatever they were trying to invent.

[00:17:08] Speaker 00:
But maybe some of the other meetings were just in trying to best learn the technology so we could sell it.

[00:17:16] Speaker 01:
It's possible.

[00:17:17] Speaker 01:
And again, it's the lack of evidence.

[00:17:19] Speaker 00:
But there's no trouble.

[00:17:20] Speaker 01:
And I would note that.

[00:17:23] Speaker 01:
The inventors testified, and the board picked up on this, that they started working on their invention pre-critical date.

[00:17:30] Speaker 01:
Right after that April 2008 meeting, they continued to work diligently towards reducing it to practice.

[00:17:36] Speaker 01:
So there must have been, if that's correct, some improvements.

[00:17:40] Speaker 01:
So I don't think the drawings from April 2008 can necessarily be the state of the design in February 2009.

[00:17:49] Speaker 01:
I think that inference is not appropriate.

[00:17:55] Speaker 01:
And turning to the the undated drawings again, I think the board was correct and not affording those We wait to corroborate the inventors testimony undated documents Do not necessarily stand for the proposition that they were disclosed just because the inventors testimony says that in fact we pointed out in our brief if you're going to speculate about the date that just as easily could have been created in 2008 or

[00:18:19] Speaker 01:
more likely January 2010, we just don't know.

[00:18:23] Speaker 01:
And it's just improper to first speculate on the date and then try to draw inferences from that of what may or may not have happened over a particular time frame.

[00:18:32] Speaker 01:
But ultimately, the board looked at the evidence.

[00:18:36] Speaker 01:
They weighed it, the credibility.

[00:18:38] Speaker 01:
They didn't find corroborating evidence for the dinners testimony over that 2009 time period, except for that they contacted a patent attorney to do a patentability search and found that there was a lack of reasonably continuous diligence over that time frame.

[00:18:54] Speaker 01:
Are there any questions on that?

[00:18:59] Speaker 01:
Any questions on the arguments for reasons to combine?

[00:19:05] Speaker 01:
Then I'll see you the rest of my time.

[00:19:07] Speaker 03:
Thank you.

[00:19:17] Speaker 03:
Okay, so starting with the discussion about

[00:19:21] Speaker 03:
graph material and the drawings.

[00:19:26] Speaker 03:
It's important to note that we have diligence even if you don't find corroboration with the documents because we have Anna Green's uncontroverted third-party testimony that corroborates their diligence during these meetings.

[00:19:43] Speaker 03:
The documents just add further support.

[00:19:46] Speaker 03:
We're not saying you have to find it alone on those documents.

[00:19:49] Speaker 03:
It's just another data point.

[00:19:51] Speaker 03:
And then concerning the graph material, again, just another data point, but the board credited flexes activity in researching this graph material.

[00:20:08] Speaker 03:
So again, there's already evidence that searching for graph material was relevant to diligence, the same thing that Lynn and Nelson were doing.

[00:20:18] Speaker 03:
And again,

[00:20:22] Speaker 03:
Orthovics can't point to anything saying that the discussions during these surgeries did not involve the inventions.

[00:20:30] Speaker 03:
It's speculative.

[00:20:31] Speaker 03:
But that requires ignoring Anne Green's uncontroverted third-party testimony.

[00:20:37] Speaker 03:
So again, under the rule of reason, stepping back, you have to look at the entirety of the period.

[00:20:45] Speaker 03:
With the surgeries we've established from February 2009 through August,

[00:20:49] Speaker 03:
There's diligence.

[00:20:51] Speaker 03:
And then picking back up in January 2010 through October, uncontested diligence.

[00:20:59] Speaker 03:
We also have October and January.

[00:21:02] Speaker 03:
So at worst, there's a couple of months where there's no documentation.

[00:21:06] Speaker 03:
That alone would not be sufficient to defeat diligence.

[00:21:09] Speaker 03:
If there's no further questions, I yield the rest of my time.

[00:21:13] Speaker 00:
Thank you.