[00:00:00] Speaker 02:
Next appeals docket number 23-1027 Cqv corporate company versus Merc Mr.. Geiger

[00:00:14] Speaker 02:
reserve four minutes for a rebuttal, right?

[00:00:18] Speaker 02:
That's correct.

[00:00:19] Speaker 02:
OK.

[00:00:19] Speaker 02:
Please begin.

[00:00:21] Speaker 02:
Please start with standing.

[00:00:24] Speaker 01:
May it please the court, I was actually going to start with standing, I assume, based on this court's April 12th order, that that is something you're very interested in hearing about.

[00:00:32] Speaker 01:
Let's hear it.

[00:00:33] Speaker 01:
So pursuant to your order, you ask that we submit declarations operating greater specificity regarding the injury, in fact, asserted by CQV.

[00:00:44] Speaker 01:
giving rise to Article 3 standing here.

[00:00:47] Speaker 01:
And the Supplemental Declaration of Mr. Choi, we believe, does that.

[00:00:53] Speaker 01:
What it does, it gives greater detail about contacts between Merck and CQB's customers.

[00:01:01] Speaker 01:
In particular, provides several

[00:01:07] Speaker 01:
notices by Merck.

[00:01:09] Speaker 02:
What do you think is your strongest evidence to support constitutional standing?

[00:01:14] Speaker 01:
I'd say it's a combination of a couple things.

[00:01:17] Speaker 01:
One, the letters themselves showing that Merck believes that the product that is being sold by CQV to these customers potentially infringes the patent or publication of the application that led to the patent with the case of the

[00:01:35] Speaker 02:
First four of those letters, that's Exhibit A. You're talking about the letters to foreign customers and distributors, not to customers, distributors in the United States, right?

[00:01:45] Speaker 02:
That's correct.

[00:01:47] Speaker 01:
Although, I will say, the letter itself, by its term, says this is not limited to your local market.

[00:01:55] Speaker 01:
It mentions entrenchment in the United States and China and other jurisdictions.

[00:02:01] Speaker 01:
If you look at Exhibit A, it says we know

[00:02:04] Speaker 01:
goods tend to move out of your local market when you look at everything.

[00:02:09] Speaker 01:
Merck's counsel argues that we're very careful not to threaten litigation in that letter or those letters, but that's not the standard.

[00:02:23] Speaker 01:
R.S.

[00:02:24] Speaker 01:
group via British telecoms, which they rely upon.

[00:02:27] Speaker 01:
say that claritory judgment action cannot be defeated simply by the stratagem of a correspondence that avoids magic words such as litigation or infringement.

[00:02:35] Speaker 01:
I'll also submit here that these letters do mention that the products may constitute infringement of these applications.

[00:02:43] Speaker 01:
And at least for the first four, the European ones, give a set time to respond to the letter, which

[00:02:52] Speaker 01:
What about your indemnity agreement with Exalta?

[00:02:56] Speaker 01:
Sounds pretty interesting.

[00:02:57] Speaker 01:
Yeah.

[00:02:58] Speaker 01:
So that is the second big piece here.

[00:03:00] Speaker 01:
So we think the letter is established that Merck believes that there is potential infringement here.

[00:03:06] Speaker 01:
The indemnity agreement is what actually makes this personal to CQV.

[00:03:13] Speaker 02:
How do we know that the indemnity agreement was spurred on by contacts by Merck to Exalta about your products?

[00:03:24] Speaker 01:
I don't know that there's enough in the record to establish that.

[00:03:27] Speaker 02:
Well, I'll say that through the listing in the appendix to the indemnity agreement?

[00:03:32] Speaker 01:
The indemnity agreement does not list the patent itself, which was not issued at the time of the indemnity agreement, nor does it list the patent publication, which was.

[00:03:43] Speaker 01:
However, the indemnity agreement is open-ended.

[00:03:51] Speaker 01:
Merck's counsel argues that even though it says it's not limited to the enumerated IT in the agreement, that it may not necessarily be open-ended.

[00:04:04] Speaker 01:
I don't see a reading of that that would suggest that.

[00:04:09] Speaker 01:
What that does is

[00:04:11] Speaker 01:
If this customer is sued for infringement of Merck's patent, based on our read of the agreement, CQB would be required to indemnify.

[00:04:26] Speaker 01:
And so those two pieces of evidence together, I think, are our strongest evidence of standing.

[00:04:35] Speaker 01:
If there are no other questions about standing, I'd like to move on to the stuff.

[00:04:39] Speaker 01:
Please.

[00:04:51] Speaker 01:
So, substantively, this case, I think the main issue on appeal here is whether or not there was substantial evidence for the board's finding that the Zoralec samples tested by CQV were publicly available prior to the critical date.

[00:05:09] Speaker 00:
Can you specifically identify the evidence you contend that the PTAB did not consider that might affect the outcome?

[00:05:19] Speaker 01:
Yes, Your Honor.

[00:05:22] Speaker 01:
It's less that we think that they didn't consider the evidence, although there is certainly some elements of Merck's employees' testimony, this is Mr. Ferch, that the board did not explicitly consider in the opinion.

[00:05:41] Speaker 01:
However, I think what we would say is more that the board did not

[00:05:50] Speaker 01:
take into account the totality of the evidence that had been presented by CQV.

[00:05:57] Speaker 01:
They focused primarily on Mr. Choi's declaration, which I think is very important, but ignored how Mr. Fritch's testimony corroborated that declaration.

[00:06:12] Speaker 01:
So for example, Mr. Choi

[00:06:15] Speaker 01:
said in a statement that they had purchased or obtained this sample in October of 2011 from a former Merck distributor.

[00:06:24] Speaker 01:
And the board found that that was not enough.

[00:06:30] Speaker 01:
However, you put that in combination with Mr. Furch's testimony that the lot numbers of the samples

[00:06:43] Speaker 01:
have two-digit code that corresponds to your manufacturer, that Merck would make these things available, these lots available for sale as soon as quality assurance period ended.

[00:07:00] Speaker 02:
That's the piece of evidence that we didn't see the board actually comment on, right?

[00:07:05] Speaker 01:
Right.

[00:07:06] Speaker 02:
There's two pieces.

[00:07:07] Speaker 02:
One is the fact that Merck's witness said that

[00:07:13] Speaker 02:
these lots, these batches, these samples, they go onto the market after quality control.

[00:07:19] Speaker 02:
And then your second piece of evidence that the board didn't express and talk about was the fact that for you, CQV, your corresponding pigment products take two to three weeks to go through quality control.

[00:07:34] Speaker 01:
Indeed, Your Honor.

[00:07:35] Speaker 01:
And does string credulity that quality control would take

[00:07:39] Speaker 01:
more than four years, for example, which is what it would require in order for these products not to have been available prior to the critical date, considering we have a manufacturing date of 2007 and then a critical date depending on this was actually not decided by the board.

[00:07:59] Speaker 02:
The other side says

[00:08:01] Speaker 02:
We have case law that says you don't have to, the board isn't necessarily required to actually expressly talk about every piece of evidence that's in the record to render a defensible ruling.

[00:08:19] Speaker 01:
Your Honor, I think that's true.

[00:08:22] Speaker 01:
They don't have to talk about it.

[00:08:24] Speaker 01:
However, there still has to be substantial evidence to support their finding, and here we think there isn't.

[00:08:32] Speaker 01:
We think that's the only inference that you can draw from the evidence that's in the record is that it was publicly available before the priority.

[00:08:40] Speaker 02:
They say it could have been for internal experimental use or something.

[00:08:45] Speaker 01:
I understand that that's what they say, but there's no evidence in the record to support that.

[00:08:50] Speaker 01:
Merck provided no evidence that this was something that was even an option for these samples.

[00:08:58] Speaker 00:
What about the fact that they say that you provide the evidence on the quality control in that two to three weeks based on your products as opposed to theirs?

[00:09:09] Speaker 00:
What's your response to that?

[00:09:11] Speaker 01:
Well, that's certainly true.

[00:09:13] Speaker 01:
However, I think it does give a good benchmark for what might be reasonable in the industry.

[00:09:19] Speaker 01:
Well, because why?

[00:09:21] Speaker 02:
I mean, just because you say so?

[00:09:24] Speaker 02:
I mean, you've got to give us a little more.

[00:09:25] Speaker 01:
Understood, Your Honor.

[00:09:27] Speaker 01:
The products themselves are very similar.

[00:09:31] Speaker 01:
Clearly, Merck is of the view that they're very, very similar.

[00:09:36] Speaker 01:
We think that quality control of this type of product would take pretty much the same regardless of who makes it.

[00:09:41] Speaker 01:
Now, of course, some companies may have different exacting standards, but given the 10-year shelf life for the product and the fact that customers, as Merck's

[00:09:53] Speaker 01:
witness testified are interested in this shelf life for the products, we don't think it would take 40 years to conduct a quality assurance review.

[00:10:05] Speaker 00:
My understanding is that you agree that the PTAP could focus on sample C, but I'm seeing something different in the briefing implying that maybe there needed to be stuff on

[00:10:13] Speaker 00:
other samples as well?

[00:10:14] Speaker 00:
Can you respond to that too?

[00:10:16] Speaker 01:
Yes, Your Honor.

[00:10:17] Speaker 01:
So, before the board, if you look at the hearing transcript, the context of that statement was based on, substantively, whether or not sample C was representative of the physical properties of the samples, and whether it alone would suffice

[00:10:40] Speaker 01:
subjectively to show that the products with these characteristics were available.

[00:10:47] Speaker 01:
What wasn't in that line of questioning or considered at that time was the public availability aspect, which sample C is not necessarily representative.

[00:10:57] Speaker 01:
There are different pieces of evidence for different samples.

[00:11:01] Speaker 01:
If you look at the samples D and E, for example, for those samples,

[00:11:08] Speaker 01:
There are specific certificates of analysis, Merck's certificate of analysis that are directed to those lots.

[00:11:18] Speaker 01:
So in our read of that transcript, at least from CQV's perspective, they were only agreeing to that from a substantive perspective.

[00:11:30] Speaker 01:
Whether or not the, I think I'm about to be in my rebuttal time, but I want to answer your question because you seem dubious.

[00:11:37] Speaker 02:
Yeah.

[00:11:37] Speaker 02:
No, I just want to have a question about claims 18, 19, 20, and 22.

[00:11:41] Speaker 02:
OK.

[00:11:42] Speaker 02:
As I understand it, none of your attacks as to those claims relied in part on the Cyrillic product being prior art.

[00:11:55] Speaker 02:
So even if we were to vacate and remand on the claims in which the Cyrillic product was asserted as prior art,

[00:12:06] Speaker 02:
That wouldn't affect claims 18, 19, 20, and 22.

[00:12:09] Speaker 02:
Is that right?

[00:12:10] Speaker 02:
I believe that's the case, Your Honor.

[00:12:13] Speaker 02:
So you asked for a vacate and remand, but you're not asking for a vacate and remand as to those claims, as you couldn't possibly be.

[00:12:22] Speaker 02:
Right.

[00:12:22] Speaker 02:
So at best, you're seeking a vacate in part and an affirm in part, because you haven't actually raised an independent argument as to those claims.

[00:12:31] Speaker 02:
Yes, Your Honor.

[00:12:31] Speaker 02:
OK, very good.

[00:12:32] Speaker 02:
Let's hear from the other side.

[00:12:43] Speaker 03:
May it please the court?

[00:12:44] Speaker 03:
Your honors, I think I'll also start with standing.

[00:12:47] Speaker 03:
I think it probably helped the court the most.

[00:12:49] Speaker 03:
There's eight customers involved, and there are long paths through this, and there are short paths through this.

[00:12:53] Speaker 03:
So I will try to give you what we think is the shortest path through it.

[00:12:58] Speaker 03:
Their claim for standing is derivative.

[00:13:01] Speaker 03:
So they either have to show that they have some sort of liability for indirect infringement.

[00:13:06] Speaker 03:
They don't have to admit it, or they have to show indemnification.

[00:13:10] Speaker 03:
on the first branch that they have some sort of liability.

[00:13:13] Speaker 03:
They have not said in their declarations.

[00:13:15] Speaker 03:
They said in their blue brief.

[00:13:16] Speaker 03:
But in the evidence, no contacts by CQB with the US, no sales into the US, no allegations that they do anything that could possibly be interpreted as an inducement, a contribution, any of that.

[00:13:31] Speaker 03:
So there's a lack of US content by them in the evidence.

[00:13:36] Speaker 03:
So on their indirect infringements, there's nothing there for any of these customers.

[00:13:42] Speaker 02:
The customer letters that go to Europe or Korea

[00:13:47] Speaker 02:
don't they indicate that these goods can easily travel and so the theme of the letter therefore is that that's why we're listing all of our patent rights across eight different countries because even though you may be operating in a few different countries we want to let you know how we, Merck, have patent rights worldwide and we're doing heavy market surveillance and these goods can travel from

[00:14:16] Speaker 02:
jurisdiction to jurisdiction.

[00:14:18] Speaker 02:
In that sense, maybe the letter is a little bit more broad, including the United States, given that all of these letters explicitly cite several U.S.

[00:14:29] Speaker 02:
published applications.

[00:14:31] Speaker 03:
Okay, so I have multiple answers to that.

[00:14:33] Speaker 03:
First, it does not affect their derivative standing.

[00:14:38] Speaker 03:
Perhaps, and I'll get to the customers not having standing, but perhaps the customers have standing.

[00:14:43] Speaker 03:
Perhaps the distributors, whatever distributors, they've mentioned distributors that operate in the U.S., could have derivative standing, but that does not give CQB standing, because CQB has not said that it does anything in the United States

[00:14:57] Speaker 03:
or directed toward the United States.

[00:14:59] Speaker 03:
They may sell in Korea without anything other than that to a company that then brings it into the United States.

[00:15:05] Speaker 03:
It's their burden to show that they have something directed to the United States.

[00:15:09] Speaker 03:
They haven't.

[00:15:10] Speaker 03:
So that's the first answer to that.

[00:15:11] Speaker 03:
The second is all of those letters, the European and the Korean letter, those customers have not indicated that they sell in the US or intend to sell in the US.

[00:15:22] Speaker 03:
So this is kind of like the early

[00:15:26] Speaker 03:
Cases about jet engines right there was a first jet engine case where they said well, we'd like to make a jet engine Well, there was no standing there because they weren't prepared to make a jet engine.

[00:15:36] Speaker 03:
They weren't on the cusp of it It was just out there the second one.

[00:15:40] Speaker 03:
They said we are prepared to make a jet engine and and therefore

[00:15:44] Speaker 03:
there was standing here there is no evidence that the korean company or the european companies want to enter the u.s.

[00:15:51] Speaker 03:
intended to enter the u.s.

[00:15:53] Speaker 03:
intended to enter the u.s.

[00:15:55] Speaker 03:
if they hadn't gotten the letter nothing of that there's just the letter there are other problems the red letter doesn't identify uh... their product doesn't identify them

[00:16:04] Speaker 03:
A lot of the letters don't identify the U.S.

[00:16:07] Speaker 03:
as a relevant jurisdiction.

[00:16:08] Speaker 03:
None of the European letters do.

[00:16:09] Speaker 03:
But I think the fundamental issue with the non-U.S.

[00:16:13] Speaker 03:
companies is that none of those companies are alleged to be interested in the U.S.

[00:16:19] Speaker 03:
And so they don't even have initial standing, so they can't piggyback off that standing.

[00:16:24] Speaker 03:
So that gets us to indemnification the other possible way.

[00:16:28] Speaker 03:
I think the only serious possible indemnification is the agreement that they attached.

[00:16:35] Speaker 03:
And there's multiple problems there, mainly with the customers standing.

[00:16:38] Speaker 03:
So we'll just move away from the indemnification agreement.

[00:16:41] Speaker 03:
We have arguments on that.

[00:16:42] Speaker 03:
We provided them.

[00:16:43] Speaker 03:
There's no timing on when assertions were made against that customer.

[00:16:49] Speaker 03:
as far as imminence goes, and as far as the issued patent.

[00:16:53] Speaker 02:
The only assertion is that there were, or the only argument from them is- Is there a requirement in the law for the patent infringement assertion to be at a particular time?

[00:17:03] Speaker 02:
I'm thinking of a case like Grip Energy.

[00:17:05] Speaker 02:
I don't recall in that case.

[00:17:07] Speaker 02:
So long as the patent is still in existence, the letter is

[00:17:14] Speaker 02:
is good until it's formally withdrawn by the patent.

[00:17:17] Speaker 03:
So two answers for that.

[00:17:18] Speaker 03:
It has to be imminent.

[00:17:20] Speaker 03:
And then this only refers to assertions of the application or the publication.

[00:17:25] Speaker 03:
The publication occurred in 2014.

[00:17:27] Speaker 03:
the patent didn't issue until 2020.

[00:17:30] Speaker 03:
The agreement they've provided is 2018.

[00:17:34] Speaker 03:
So nothing on the issued patent.

[00:17:36] Speaker 03:
Those claims were amended in 2018 and 2019, first to add the limitation that it be from 150 to, I think it's 400, it used to be 500 or under for thickness, also to add the D10 limitation.

[00:17:50] Speaker 03:
And then the second amendment to the patent, right before it was allowed in 2000, it was allowed in 2020, but the amendment was made in 2019, was to add the Alpha Illumina limitation.

[00:18:01] Speaker 03:
So whatever was going on here, we don't know what was said to that customer, there's just a vague allegation, but whatever was going on likely occurred before the claims were amended.

[00:18:12] Speaker 03:
So that reset

[00:18:13] Speaker 03:
the framework, and the fact that we've now gone four years since the patent is issued and nothing has happened further supports the idea that whatever happened back then, and this is hearsay again.

[00:18:24] Speaker 02:
A couple years ago there was a lawsuit filed in Korea, right?

[00:18:28] Speaker 03:
Not against that customer, not against any of the other customers.

[00:18:32] Speaker 02:
But it's asserting that

[00:18:34] Speaker 02:
cqb's adamance product is infringing the Korean path right and it's too late but they say well you know could reflect could reflect that i think what the analysis for that it really kind of and that it's a confirmatory at best here type of evidence but nevertheless signed a standard

[00:18:51] Speaker 02:
The corresponding Korean patents being asserted has the same kind of claim about these aluminum plates and having the same dimensions of thickness and diameter.

[00:19:05] Speaker 02:
That's fuzzy.

[00:19:07] Speaker 03:
I'm not saying that we're going to argue that hard, but that's fuzzy and they have the burden.

[00:19:12] Speaker 02:
I understand.

[00:19:12] Speaker 02:
I mean, we have a translation now.

[00:19:15] Speaker 02:
Machine translation that they admit is don't have a counter translation from you.

[00:19:19] Speaker 03:
We don't have a burden, okay fine Can we get to the merits sure I think the easiest route through the merits the central problem.

[00:19:27] Speaker 03:
They have is they're seeking vacatur okay on using multiple pieces of circumstantial evidence and They're up against a substantial evidence standard of review, okay

[00:19:41] Speaker 03:
I think the fundamental problem as I listen here and as I look at the theme in their reply brief is we think they misunderstand what the substantial evidence standard review is.

[00:19:53] Speaker 03:
They think there has to be evidence on our side, we do have evidence but I want to talk about the legal point first, that there has to be evidence on our side for there to be substantial evidence.

[00:20:07] Speaker 03:
And it sounds good when you first think of it, but it's not true.

[00:20:10] Speaker 02:
No, we understand.

[00:20:12] Speaker 02:
If there's a failure of proof on their side to meet their burden, then that's the end of the game.

[00:20:17] Speaker 02:
You don't have to put on a counter case.

[00:20:19] Speaker 02:
Right.

[00:20:20] Speaker 03:
So let's talk about why the board could find a failure of proof on their side.

[00:20:25] Speaker 03:
The big point that they have to link up is the data manufacturer with some data sale.

[00:20:30] Speaker 03:
Right off the top, corroboration is a problem.

[00:20:33] Speaker 03:
We heard for the first time today that Mr. Fritch corroborated somehow Mr. Chow.

[00:20:38] Speaker 03:
He did not, Troy.

[00:20:40] Speaker 03:
There's no corroboration there.

[00:20:42] Speaker 03:
They did not say anything about corroboration in the reply.

[00:20:44] Speaker 03:
So they have a lack of corroboration for this sample.

[00:20:47] Speaker 00:
Do you agree that the evidence that CQB put forth regarding the two to three weeks with respect to quality control is unrebutted?

[00:20:57] Speaker 03:
Unrebutted and irrelevant.

[00:21:00] Speaker 03:
Okay, it relates to their system.

[00:21:03] Speaker 03:
Their system is not evidence of what the industry does, but I think more fundamentally, I don't want to hang the whole case on that, because I think more fundamentally, fine, if they actually had evidence that this sample entered quality control on date X, and then two years past or something, that might be a different case, but they don't have that.

[00:21:23] Speaker 03:
All they have is a manufacturing date,

[00:21:25] Speaker 03:
They have two pieces of testimony.

[00:21:28] Speaker 03:
One that says when it gets out of quality control, it's available.

[00:21:32] Speaker 03:
And one that says in this other company's system, not in the industry, but in this other company's system, it's two to three weeks in quality control.

[00:21:41] Speaker 03:
But they don't have any evidence to show that it went into quality control.

[00:21:45] Speaker 03:
They say, well, we speculate that it didn't.

[00:21:47] Speaker 03:
I would say they speculate that it did.

[00:21:48] Speaker 03:
It's their burden.

[00:21:49] Speaker 00:
Are you continuing, though, that CQB's product is substantially similar to Merck's product?

[00:21:57] Speaker 03:
I don't think there's any evidence.

[00:21:59] Speaker 03:
I don't think they've said anything about what their product is.

[00:22:03] Speaker 03:
I think the most they have is that it competes with our product.

[00:22:06] Speaker 03:
I don't think they've ever said a word in any of the declaration about what their product is.

[00:22:11] Speaker 02:
I guess the concern I have is that one way to read the board's opinion is that the board was demanding some form of direct evidence and that the circumstantial evidence would not be enough.

[00:22:26] Speaker 02:
I mean, we do have

[00:22:28] Speaker 02:
some interesting clues in the record.

[00:22:31] Speaker 02:
We know the manufacturer date.

[00:22:33] Speaker 02:
Is that right?

[00:22:34] Speaker 02:
No.

[00:22:35] Speaker 02:
We don't know the manufacturer date.

[00:22:37] Speaker 02:
No.

[00:22:37] Speaker 02:
Well, it's unrebutted.

[00:22:38] Speaker 02:
Is it not that 2007 is the manufacturer date here for sample C?

[00:22:45] Speaker 02:
No.

[00:22:46] Speaker 02:
well we're going to admit that this goes to the standard review i understand but okay where there's no problem is there something that suggests that samples he was not manufactured it comes completely from mr choice testimony that is not corroborated

[00:23:06] Speaker 03:
There's not counter evidence on the manufacturer.

[00:23:08] Speaker 02:
This reminds me of something.

[00:23:10] Speaker 02:
There's a decent amount of material that's been identified as confidential, has been marked confidential.

[00:23:20] Speaker 02:
And it feels a little inconsistent.

[00:23:22] Speaker 02:
I mean, there are times where I see in the briefing discussion of lot numbers that are not marked confidential, and then there are other times that there are.

[00:23:30] Speaker 02:
It would be very helpful should we need to write an opinion here.

[00:23:34] Speaker 02:
Most likely we do.

[00:23:35] Speaker 02:
that we get better clarification.

[00:23:39] Speaker 03:
Yes.

[00:23:41] Speaker 03:
I don't think you're going to have to go that deep.

[00:23:43] Speaker 03:
And if you do, for some way, we're OK with that.

[00:23:48] Speaker 03:
There was confidentiality on that.

[00:23:50] Speaker 03:
And then along the way, in the initial decision, certain things got published.

[00:23:54] Speaker 03:
And so that's the story of how we got here.

[00:23:57] Speaker 03:
But I think I can say to the court, write your opinion as you need to, if that helps.

[00:24:04] Speaker 02:
Great.

[00:24:05] Speaker 02:
As far as I know, that the board did not seem to challenge or dispute the idea that there was a manufacture date of 2007, that the expiration of these products is 10 years.

[00:24:22] Speaker 02:
But I didn't see the board discuss or acknowledge your witness's statement that

[00:24:31] Speaker 02:
as soon as these products go through quality control, they go out onto the market.

[00:24:37] Speaker 02:
Then the second piece of evidence, of course, is that CQB's own corresponding product, it takes two to three weeks to go through quality control.

[00:24:46] Speaker 02:
I guess the concern I have is that there is a story there.

[00:24:51] Speaker 02:
It's not direct evidence, it's circumstantial evidence, but there's a collection of clues that could

[00:24:56] Speaker 02:
lead a reasonable fact-finder to reach a result that the board didn't make, but the board didn't address all of the fact points.

[00:25:05] Speaker 02:
And so can you explain to me why we shouldn't vacate?

[00:25:10] Speaker 02:
Sure.

[00:25:10] Speaker 03:
So I think if you go to page 29 of the board's opinion

[00:25:13] Speaker 03:
I won't go into detail, but this is the in theory, but not in fact.

[00:25:19] Speaker 02:
This is the one paragraph on this point.

[00:25:21] Speaker 03:
And so they're saying, well, even if the incentive existed.

[00:25:24] Speaker 03:
So they're talking about this timing issue and all of that.

[00:25:28] Speaker 03:
They say, even if that existed, what they're saying with the in theory and fact is, your proof relates to what generally happens.

[00:25:36] Speaker 03:
And we don't think it's enough to show what happened with this sample.

[00:25:42] Speaker 03:
Okay, we think there's both evidence to support that lack of corroboration for when the sample was sold or whether it even was a sample, failure to

[00:25:53] Speaker 03:
link up the manufacturing date with the QC date.

[00:25:58] Speaker 03:
Failure to show certificates of analysis when they had certificates of analysis, that's actually positive proof for our side.

[00:26:05] Speaker 03:
We have certificates of analysis for other products that were sold publicly, but we don't have a certificate analysis for this one.

[00:26:12] Speaker 03:
That's positive evidence on our side.

[00:26:15] Speaker 03:
And so we think all of that supports that.

[00:26:18] Speaker 02:
And then to be fair, that's loading a lot into what this paragraph actually says.

[00:26:24] Speaker 02:
We don't know if the board found anything that you just said to be persuasive.

[00:26:28] Speaker 03:
So let me give you a legal link that I think hooks even better to this.

[00:26:32] Speaker 03:
The inferior fact is the three cases we show that say that evidence about what generally happens is not evidence about what happened in a specific instance.

[00:26:45] Speaker 03:
So evidence about what a workflow might generally be, more than 50% of the time samples move through the workflow, that is not evidence.

[00:26:56] Speaker 03:
And certainly not, you know, JMAW level, you know, reversal on a substantial evidence standard.

[00:27:02] Speaker 03:
Certainly not that level of evidence.

[00:27:04] Speaker 03:
And the three cases we discuss on that I think are relevant.

[00:27:07] Speaker 03:
They're not limited to statistical evidence, whatever that means.

[00:27:10] Speaker 03:
More likely than not is statistical evidence.

[00:27:13] Speaker 03:
But those cases express this idea that you cannot use evidence about what generally happens to substitute for evidence of what happened in a particular circumstance.

[00:27:24] Speaker 02:
But what if we read those cases that you cited as really being more about there are a plausible set of possibilities that could have happened, possible alternatives.

[00:27:38] Speaker 02:
and we don't have any real confidence as to which of the alternatives actually is true and in that way you can't say that the plaintiff or the petitioner in that instance met its burden of proof just because there's a statistical likelihood that option A was the thing that actually happened over option B. In this particular instance, as far as I can tell, we don't have

[00:28:04] Speaker 02:
a menu of options of what could have happened here with sample C. As far as I know, we only have one option.

[00:28:10] Speaker 02:
We're not really sure if that option is in fact true, but it's not like, okay, then there was another alternative.

[00:28:18] Speaker 02:
I know in your briefing to us, you talk about the idea that maybe this is just some internal use sample for experimental purposes or otherwise, but

[00:28:28] Speaker 02:
I don't think that was in the record.

[00:28:30] Speaker 02:
I don't think the board had in front of it that, you know, 95% of the time samples that get manufactured by Merck go to market, but there's 5% that don't, and so we at the board have no confidence as to whether this is the one that went to the market or it was somehow purely for internal use that CQV somehow, someway grabbed for its own purposes.

[00:28:55] Speaker 02:
So that's the concern I have with these cases that you cited.

[00:28:59] Speaker 03:
So I'm more than happy to go there with you, because the premise of their whole argument, you'll see they say more likely than not over and over in their brief.

[00:29:08] Speaker 03:
That's their premise, is it's more than 50% likely.

[00:29:11] Speaker 03:
They're the ones that brought the statistics in.

[00:29:13] Speaker 03:
I would go there with you, because we have no indication.

[00:29:16] Speaker 03:
They need to get over 50%.

[00:29:18] Speaker 03:
That premise of more likely than not just isn't there.

[00:29:21] Speaker 03:
You can't use the Fritch testimony to get there.

[00:29:24] Speaker 03:
He's just talking about that little window after quality control to release.

[00:29:29] Speaker 03:
You can't use the Choi testimony to get there, because he's just talking about that last window of quality control.

[00:29:36] Speaker 03:
Nobody talks about the rest of the period, and they have the burden.

[00:29:40] Speaker 03:
And so I'm happy to go there with you, because the problem is there is not ours.

[00:29:45] Speaker 03:
I think we've got your argument.

[00:29:47] Speaker 02:
Thank you, Mr. Dragsassi.

[00:29:59] Speaker 01:
Before I begin, I just want to correct something I said earlier about the claims that are being challenged now.

[00:30:05] Speaker 01:
Only 22, I think, falls in that bucket of did not have Zeralic as one of the grounds.

[00:30:14] Speaker 01:
If you go back to the petition, which really I just did, Zeralik was part of the grounds for each of the other claims.

[00:30:22] Speaker 01:
22 is a method of manufacturing.

[00:30:26] Speaker 01:
And that one, I think, is- I don't see it identified in the board's decision.

[00:30:33] Speaker 02:
Are you saying the board made an error?

[00:30:38] Speaker 02:
I will say I don't have the institution- Just A7, for example.

[00:30:45] Speaker 02:
Or 835.

[00:30:47] Speaker 01:
I can only say that our petition included the Zoraleck as part of those grounds.

[00:31:08] Speaker 01:
Standing here right now, I'm not understanding why that's not in the board's decision.

[00:31:17] Speaker 01:
Moving on to substance here, actually, before I even touch that, regarding confidentiality, CQV does consider the customer names in the most recent declaration, in particular, the name of the customer that has a contractual indemnity with CQV as confidential.

[00:31:40] Speaker 00:
You can talk more generally, just don't reveal the customer names that you only remain in concern on confidentiality.

[00:31:46] Speaker 01:
Yes, Your Honor.

[00:31:47] Speaker 00:
Does CQV sell atomists in the United States?

[00:31:50] Speaker 01:
Through distributors.

[00:31:51] Speaker 01:
It does not directly sell atomists in the United States.

[00:31:57] Speaker 01:
I want to touch briefly with the time that I have left.

[00:32:05] Speaker 01:
Council said that the manufacturing date is not corroborated.

[00:32:10] Speaker 01:
So the Choi declaration does say that it is a 2007 lot based on

[00:32:16] Speaker 01:
the lot number of that sample.

[00:32:20] Speaker 01:
However, that's not entirely uncorroborated.

[00:32:24] Speaker 01:
The Fritch Testimony includes testimony that the lot numbers include a two-digit number that sets forth or reflects the manufacturing date.

[00:32:35] Speaker 01:
And the Merck Certificates of Analysis also reinforce that.

[00:32:41] Speaker 01:
Those are 2012 and 2011 certificates of analysis.

[00:32:44] Speaker 01:
But for those, those first two digits of those lot numbers reflect the manufacturing date, which is where we get the 2007 date.

[00:32:53] Speaker 01:
That is the remaining of my time, unless Your Honor is having any other questions.

[00:32:58] Speaker 01:
Thank you for your time, and we appreciate it.

[00:33:00] Speaker 02:
OK, very good.

[00:33:01] Speaker 02:
Thank you.

[00:33:02] Speaker 02:
Case is submitted.