[00:00:00] Speaker 01: Our final case this morning is number 241078, Duke University versus Sandoz. [00:00:38] Speaker 01: Okay, Mr. J. Good morning, Your Honors. [00:00:43] Speaker 04: May it please the Court, William J. for Sandoz. [00:00:46] Speaker 04: Allergan got this patent in 2017 after Latif won and after Sandoz's launch. [00:00:52] Speaker 04: And we're here today on several issues that relate to that. [00:00:55] Speaker 04: One, preclusion. [00:00:56] Speaker 04: Two, the failure to give the teaching away during instruction. [00:00:59] Speaker 04: And three, the lack of written description support in the original specification. [00:01:03] Speaker 04: I'd like to start, if I may, with preclusion. [00:01:06] Speaker 04: I think that [00:01:07] Speaker 04: The key point in understanding this court's decision in Latice 1 is that the district court considered the same combination of references that Allergan was able to retry here. [00:01:17] Speaker 04: And the district court in Latice 1 concluded that you wouldn't combine those references because amids activate a different receptor. [00:01:28] Speaker 04: And this court corrected that error on appeal and said that, in fact, the teachings of the prior art were that [00:01:35] Speaker 04: Johnstone, the reference that taught the hair growth utility, taught squarely toward a new utility for a finite set of already identified and isolated compounds, specifically all the compounds in the 819 patent, and did not limit itself to those that bound the [00:01:55] Speaker 04: FP receptor or a variant. [00:01:57] Speaker 04: That's at page 963 of Latice 1. [00:02:00] Speaker 04: And I think that understanding Latice 1 in that way deals with both the other side's assertion that this case involves a different issue and the other side's assertion that it somehow wasn't relevant to the outcome in Latice 1. [00:02:15] Speaker 04: Because what this court did was it concluded that the district court's finding that you wouldn't come on those references rested on legal error. [00:02:21] Speaker 03: It looked second. [00:02:23] Speaker 03: Here's my problem with your collateral stopper argument. [00:02:25] Speaker 03: As I understand it, in Latice 1, we said we have a very broad claim. [00:02:29] Speaker 03: And at least one point within that broad claim was obvious. [00:02:35] Speaker 03: Today, we have a review of a very narrow claim that is maybe a subset of the broad claim we considered in Latice 1. [00:02:43] Speaker 03: And it may be that the point [00:02:45] Speaker 03: within that broader claim that we're concerned with today is also obvious. [00:02:49] Speaker 03: But it may be that it's not obvious. [00:02:51] Speaker 03: Therefore, we have a fact dispute. [00:02:53] Speaker 03: And it was proper to try this. [00:02:55] Speaker 03: What's wrong with that analysis? [00:02:57] Speaker 04: A couple things. [00:02:57] Speaker 04: And let me just note parenthetically that it's narrower in some respects. [00:03:01] Speaker 04: It's actually broader in at least one minor respect. [00:03:04] Speaker 04: But what matters for these purposes is it is not different in any material respect. [00:03:08] Speaker 04: And here is why. [00:03:09] Speaker 04: Because if you combine Johnstone's teaching about hair growth [00:03:15] Speaker 04: from compounds that treat glaucoma with the list of compounds isolated and identified as treating glaucoma in the Woodward patent, a 19 patent. [00:03:28] Speaker 04: The question is whether this court in Latice 1 limited itself to some subset of those and said, [00:03:35] Speaker 04: We don't need to look at the amids because they bind a different receptor. [00:03:40] Speaker 04: That perhaps could have been a way that this court could have decided that case, but that is not what the court said. [00:03:45] Speaker 03: But it seems we had no reason to be thinking about that very question. [00:03:50] Speaker 03: It wasn't presented in that case. [00:03:52] Speaker 04: Oh, I disagree, Your Honor. [00:03:54] Speaker 04: The district court's reason for why you wouldn't combine these references was that amids are bad because they bind a different receptor. [00:04:03] Speaker 04: Amids are undesirable. [00:04:04] Speaker 04: And this court said that the teachings of Johnstone was that these PGF analogs were desirable, irrespective of whether the activity that had been identified. [00:04:14] Speaker 03: I thought we essentially said the claims there were not limited to amids. [00:04:18] Speaker 03: So the district court in that first, Latice 1, was too narrowly focused. [00:04:23] Speaker 03: And then we invalidated based on other reasons. [00:04:25] Speaker 04: So the district court was too narrowly focused, and the court did say that. [00:04:30] Speaker 04: But none of the stuff about the receptor that the court discussed at both page 963 and 964 would have mattered if the reasoning had been what Your Honor said, because the court could simply have said, [00:04:43] Speaker 04: Well, the Woodward patent includes compounds that don't bind to the variant receptor. [00:04:51] Speaker 04: Instead, it said something broader and directly relevant to this case. [00:04:55] Speaker 04: And at a minimum, Allergan shouldn't have been able to relitigate this specific point. [00:05:01] Speaker 04: And that is why we proposed as an alternative that the jury be instructed, and there be a motion to eliminate, on the additional findings, findings three and four. [00:05:10] Speaker 04: and an expanded version of finding two, which the district court withheld. [00:05:15] Speaker 04: But ultimately, what happened in this case was that the other side was able to argue to the jury that Johnstone taught away from using the emit compounds. [00:05:25] Speaker 04: And that teach-away problem, A, was exactly what this court rejected in Latice 1. [00:05:32] Speaker 04: The court said in Latice 1 that silence does not imply teaching away. [00:05:36] Speaker 04: And then, as I hope we'll get to in a moment, the district court then didn't even tell the jury what it means to teach away and allowed the other side to argue for exactly that, that silence is a teaching away. [00:05:48] Speaker 00: What is it that you wanted the judge to tell the jury with respect to teaching away? [00:05:53] Speaker 00: What was the instruction that you asked for? [00:05:55] Speaker 04: We proposed a one sentence addition to the jury's instruction, which you can find at page 7805 to 06 of the appendix. [00:06:05] Speaker 04: And what we proposed was that the court say, a prior art reference teaches away from an invention when it criticizes, discredits, or otherwise discourages the solution coined in the patent. [00:06:19] Speaker 04: The district court acknowledged that. [00:06:20] Speaker 00: Did you need to add, and silence is not enough, in order to cure the problem? [00:06:27] Speaker 04: So we had proposed an earlier version that said what teaching away is not. [00:06:32] Speaker 04: The district court didn't like that because it was too negative. [00:06:35] Speaker 04: And so we proposed an alternative instruction that said what teaching away is. [00:06:39] Speaker 04: So I don't think it was necessary to cure the problem. [00:06:43] Speaker 04: This was the instruction that we proposed. [00:06:45] Speaker 04: And I think that if you look at, [00:06:47] Speaker 04: the slide that the other side put up that said, science teaches away from invention in two ways, referring to both the silence on a mids and the idea that the other end, quote, better not be fennel. [00:07:02] Speaker 04: Neither of those would have stood up on the correct understanding of teaching away. [00:07:06] Speaker 03: But to be clear, the disputed instruction that's before us now is the one you read. [00:07:10] Speaker 03: It's not the silence one, correct? [00:07:12] Speaker 03: That's right. [00:07:13] Speaker 03: And it wasn't limited to that. [00:07:16] Speaker 03: My concern about this argument, I think, in hindsight, sitting here not at trial with a whole bunch of things going on and trying to figure out the right jury instruction, seems relatively clear to me that your extra sentence should have been given. [00:07:33] Speaker 03: It's a correct statement of law. [00:07:36] Speaker 03: But it seemed like an awfully thin read to send back a case, putting aside all your other arguments for the moment, to have a whole new, probably one-week trial, just because one sentence is missing from a jury instruction. [00:07:52] Speaker 03: And that sentence doesn't even really say what [00:07:54] Speaker 03: what you're arguing here, which is that silence is not teaching away. [00:07:59] Speaker 03: Can you give me some comfort on why this error is just so profound, we need a whole new trial? [00:08:05] Speaker 04: A couple of things, and I'll just note parenthetically that I think a retrial would be considerably shorter, in part because, for example, the other side tried to prove willfulness. [00:08:14] Speaker 04: That resolved against them at mid-trial. [00:08:16] Speaker 04: And so some things that were tried in this case would be out of the case. [00:08:21] Speaker 04: But let me answer your question as directly as I can. [00:08:23] Speaker 04: The central question in this case was whether you would combine Johnstone and Woodward. [00:08:29] Speaker 04: The active ingredient in Lattice-Bomatoprost is disclosed explicitly in Woodward, along with the two other amide compounds that are the focus of this claim. [00:08:42] Speaker 04: And Johnstone taught the utility of compounds that treat glaucoma [00:08:49] Speaker 04: by reducing intraocular pressure. [00:08:52] Speaker 04: So the central question was, would you combine these references? [00:08:55] Speaker 04: And the other side was allowed to tell the jury through their expert repeatedly, like three different times and then again in closing, that Johnstone taught against using woodwords and mids because Johnstone would have said something about the mids if it had wanted you to use them. [00:09:11] Speaker 04: Because Johnstone didn't select them. [00:09:12] Speaker 04: Because Johnstone didn't select them. [00:09:14] Speaker 04: But what our friends on the other side said at closing was, Johnstone rejects omits. [00:09:19] Speaker 04: And they get that from silence. [00:09:22] Speaker 04: And so the centrality of teaching away to the obviousness case that they tried, I think really, especially under the 10th Circuit's standard for prejudice in a jury instruction case, I really don't think the court can say with confidence that the result would be different if this had been disallowed. [00:09:42] Speaker 01: Can I ask you to turn to written description? [00:09:45] Speaker 01: Unless you had another question. [00:09:46] Speaker 01: I was going to ask about written description. [00:09:49] Speaker 01: Great. [00:09:49] Speaker 01: So I'm a lapsed chemistry major, so I may not get this right. [00:09:53] Speaker 01: The way I read the specification on written description issue is that we're particularly concerned with the R1. [00:10:04] Speaker 01: area. [00:10:05] Speaker 01: And if I read it correctly, I see the specification as having three blaze marks which lead in different directions. [00:10:17] Speaker 01: And one of them is the column 8, the preferred compounds of which the clamp compound is not one. [00:10:25] Speaker 01: A second blaze mark, which the Duke relies on, [00:10:33] Speaker 01: is the statement of a witness who said that somehow there was a suggestion that amides might be preferred, which would include the clamp compound. [00:10:46] Speaker 01: And then the third blaze mark is in the synthesis discussion where [00:10:52] Speaker 01: the specification suggests that the synthesis would lead you to a sulfanamide, which is not one of the claimed compounds. [00:11:03] Speaker 01: So there are three possible place marks here, and I'm wondering how one would know which one of those three to follow, because [00:11:12] Speaker 01: At least one of them, the preferred discussion in column 8 leads you to a huge number of compounds which probably wouldn't satisfy written description. [00:11:27] Speaker 01: So that's sort of my take on it. [00:11:30] Speaker 04: I agree with much of what Your Honor said. [00:11:32] Speaker 04: The one thing that I want to come back to at the tail end of responding to this is that don't overlook Z because the Z position is not irrelevant. [00:11:43] Speaker 04: Our friends on the other side tried to dismiss it as irrelevant, but their own expert [00:11:46] Speaker 04: agreed that the end of the omega chain was important as well, and I would refer you to page 10678 for that. [00:11:53] Speaker 04: And then, of course, in written description, it's going to be the whole combination together that has to be supported. [00:11:58] Speaker 04: But you're right that the blaze marks are different, and I just want to highlight that in the synthesis schemes, and I think the testimony is about the synthesis schemes, [00:12:06] Speaker 04: unless you're referring to something that I'm not recalling. [00:12:11] Speaker 04: In the synthesis schemes, each of them says that R1 is as described above in column 8. [00:12:19] Speaker 04: So in other words, these synthesis schemes are for making any R1. [00:12:23] Speaker 04: And then at the end of two of them, as an example, you can manipulate the C1. [00:12:29] Speaker 04: And for example, you could make a sulfonamide, you could make an amide, and so on. [00:12:35] Speaker 04: So those don't point to the claimed omits, which I think that really is the dispositive point. [00:12:43] Speaker 04: That an omit is one thing. [00:12:45] Speaker 04: There are only three claimed omits, and there's nothing in the synthesis schemes whatsoever that points you there. [00:12:51] Speaker 04: But I think to take a step back, the other side's testimony focused on preferred embodiments or preferred. [00:12:58] Speaker 01: Well, there's no testimony by their expert reconciling those three possible approaches in saying, [00:13:04] Speaker 01: Well, reading the patent as a whole, the guidance provided in column 8 wouldn't have been taken, and it would have taken this somewhat passing reference to the hemides as being the guidepost, right? [00:13:21] Speaker 01: I mean, there's just no reconciliation to that. [00:13:23] Speaker 04: To the contrary, if you look at the way that their expert was walked through the specification, they asked him to find each group in the specification on exactly the kind of hindsight-based treasure hunt that this court, in cases like Fujikawa, has said is not how written description is supposed to work. [00:13:42] Speaker 04: It's not supposed to be from us. [00:13:43] Speaker 04: from a hindsight perspective. [00:13:47] Speaker 04: You have to have blaze marks in the specification that point you not just to preferred embodiments, for example, but to the entire combination. [00:13:57] Speaker 04: And there's no reconciliation of the other side's testimony that sometimes you'd look to the preferred [00:14:02] Speaker 04: group, but sometimes not. [00:14:04] Speaker 04: So I'm agreeing with your honor's point that there is no, the testimony doesn't stick together and point to the compounds as a whole. [00:14:14] Speaker 04: It just went hunting for references to each individual functional group. [00:14:18] Speaker 00: Can I ask you, on the R1, you know, there's, as I understand it, 13 different groups that could be at the R1 in the specification according to that discussion, column 8. [00:14:32] Speaker 00: And one of them is the R1 that would satisfy the claim, followed by claim 30. [00:14:39] Speaker 00: Just for the R1, I recognize there's other differences. [00:14:42] Speaker 00: But why isn't that enough? [00:14:43] Speaker 00: And I'm just kind of thinking about that point that was made about how [00:14:47] Speaker 00: You know, you're not looking at a forest here, you're looking at a backyard. [00:14:52] Speaker 00: And so with that focus there, why isn't that enough legally? [00:14:57] Speaker 00: Because I mean, I hear your argument. [00:15:00] Speaker 00: My big concern is that I've got a jury verdict. [00:15:02] Speaker 00: Right? [00:15:03] Speaker 00: It's a fact question. [00:15:05] Speaker 00: So just trying to understand what the test is and why is this situation not enough as a matter of law? [00:15:11] Speaker 04: So it is a fact question. [00:15:13] Speaker 04: But in cases like Novozheim, Sentecor, Nuvo, this court has found [00:15:21] Speaker 04: a complete absence of factual support for written description, even though it's a fact question. [00:15:28] Speaker 04: And I think I'm going to give you two reasons why that's the case here. [00:15:32] Speaker 04: And one, it's not 13 trees. [00:15:35] Speaker 04: This is 13 forests. [00:15:37] Speaker 04: Because each of these, it may be described in a couple of words. [00:15:41] Speaker 04: But then if you look at columns four to five of the patent, [00:15:45] Speaker 04: You'll see just how broad each of these categorical descriptions is. [00:15:49] Speaker 00: What about the one that relates to the claim here? [00:15:53] Speaker 00: Is that one broad, too? [00:15:54] Speaker 04: Well, yes, because this one is a mid, and then it has hundreds of embodiments disclosed in it. [00:16:03] Speaker 04: But it's all claimed. [00:16:04] Speaker 04: No, no only this only the three amids now I'll acknowledge it once you get from like to that non-preferred amid embodiment that like once you look into the Specification about which it which is the preferred version of R3 you will see that Phenyl ethyl and isopropyl are among the preferred embodiments of R3 but you have to get to R3 first and [00:16:30] Speaker 04: and the number of options both within R1 and R3 are quite significant. [00:16:37] Speaker 04: And I would just urge you, each of the categories in R1 is defined in quite some detail in columns four to five. [00:16:45] Speaker 04: And you'll see just how much, for example, a heterogeneous group, how much variation it can have. [00:16:51] Speaker 04: It can have anywhere from one to 18 atoms. [00:16:54] Speaker 04: It can have any [00:16:56] Speaker 04: the heteroatom, the non-carbon atom, can be just about anything. [00:17:00] Speaker 04: There are at least three preferred options. [00:17:02] Speaker 04: So just that by itself, I think, is the answer to your true use question. [00:17:08] Speaker 04: And then I just want to circle back to see that in this case, there's a complete lack of testimony, complete lack of testimony of how you get phenol out of the specification for Z because they're experts skipped over. [00:17:21] Speaker 00: The aromatic step? [00:17:22] Speaker 00: Yes. [00:17:23] Speaker 00: So, you know, whether Z would be aromatic and then within the aromatic, there is a statement in the specification about what's preferred, right? [00:17:33] Speaker 00: That's right. [00:17:36] Speaker 00: Again, same question, though. [00:17:38] Speaker 00: If aromatic is one of eight possibilities, why isn't that limiting it to a backyard as opposed to a forest? [00:17:46] Speaker 04: I mean, same answer. [00:17:48] Speaker 04: So one of those eight options, for example, is a substituted heterocyclic compound, I believe. [00:17:53] Speaker 04: And if you look at the definition of substituted, it can be any halogen. [00:17:58] Speaker 04: The options go on and on. [00:17:59] Speaker 04: And you'll find that in columns five to six, I think. [00:18:02] Speaker 04: So I think that just the fact that each one is a forest, you know, the other side certainly tried at trial to make each of these categories look like a single tree. [00:18:14] Speaker 04: But once you, you know, to return to the blaze marks metaphor, like each of these is a path that splinters into dozens and dozens of sub paths. [00:18:24] Speaker 04: And before you got to a mid, you would have passed the turning for a mid because there's no blaze mark that takes you there. [00:18:31] Speaker 03: I have two questions to try to answer quickly, if you could. [00:18:36] Speaker 03: Judge Stoll, I think, is referring to testimony that your expert gave that the jury could have reasonably thought was him agreeing these are just trees or a backyard and not a forest. [00:18:48] Speaker 03: Isn't that a possibly fair interpretation of what your expert said? [00:18:51] Speaker 04: It's not for two reasons. [00:18:53] Speaker 04: One is that trial counsel certainly tried to get him to say that and interrupted him in the middle of an answer at page 10519, where he said there's so much variety within each of them. [00:19:04] Speaker 04: And then if you look at pages 549 to 550 of the trial transcript, that's his redirect on this point, where he explains in some detail why each of these is actually a more detailed category. [00:19:17] Speaker 03: And then the efficacy. [00:19:18] Speaker 03: You say, I think, is a completely independent ground for finding lack of adequate written description, that the claims have to allow for growth of every type of hair and every type of mammal. [00:19:32] Speaker 03: Am I right that you say that's an independent failing on written description? [00:19:36] Speaker 03: And there's not a lot of briefing, or I'm not sure there's really any evidence on this. [00:19:41] Speaker 03: What do I do with that? [00:19:42] Speaker 04: So our emphasis is not on like the kinds of hair or the kinds of mammals. [00:19:45] Speaker 04: It really is just on would the compounds in there as a combination grow hair? [00:19:51] Speaker 04: And there certainly is testimony on that. [00:19:54] Speaker 03: And I think about whether it would grow eyelash hair in humans. [00:19:59] Speaker 03: Can I just focus the dispute on that for purposes of understanding your field? [00:20:03] Speaker 04: I mean, yes, I think that that's basically right. [00:20:07] Speaker 04: But that the other side tried to say that the amides would grow hair. [00:20:15] Speaker 04: But remember, it's the whole molecule that has to be involved. [00:20:17] Speaker 04: And I would just take you back to the REITs testimony that I read you before at 10678, saying that the end of the omega chain is also important. [00:20:26] Speaker 04: Thank you. [00:20:27] Speaker 04: Thank you, Mark. [00:20:29] Speaker 01: OK, thank you. [00:20:29] Speaker 01: I'll give you two minutes for rebuttal. [00:20:34] Speaker 01: Mr. Lampton. [00:20:37] Speaker 02: Thank you, and may it please the court. [00:20:39] Speaker 02: I think I would begin with where my colleague began, which is with the preclusion, and then the instruction on teaching away, and then turn to written description. [00:20:47] Speaker 02: And on preclusion, Sandoz is asking this court to effectively commit the same error that the district court committed in Latisse 1 and that led this court to reverse, which is to ignore the scope of the claims. [00:20:58] Speaker 02: The claims in Latisse 1, the claims have to be identical, [00:21:01] Speaker 02: And the resolution has to be necessary to the decision for estoppel to a broad. [00:21:06] Speaker 02: But here, the issue is entirely different, because the claims in Lattice 1 were enormously broad. [00:21:10] Speaker 02: They included things like carboxylic acid nesters. [00:21:13] Speaker 02: And those carboxylic acids were in the prior art. [00:21:17] Speaker 02: And they were not limited to compounds with the C1 amy group, which is why the court said that the challenger did not have the exacting burden of showing a reasonable expectation of success in using the narrow class of PGF analogs with C1 amy groups. [00:21:31] Speaker 02: But that narrow, that burden, that exacting burden is exactly what Sandoz has here to show that it would have been obvious to use PGF analogs with C1 AMI groups at the C1 action end. [00:21:46] Speaker 02: That makes a difference, because the court reversed the district court because it looked only at AMI. [00:21:51] Speaker 02: It was a mistake to look at AMI. [00:21:53] Speaker 02: The court should have looked at the full scope of the claims. [00:21:55] Speaker 02: And because of that, there's no reading of that decision that makes sense. [00:22:00] Speaker 02: that that decision actually says that having ammys at the C1 action end is obvious. [00:22:05] Speaker 02: It would have made the entire first three quarters of the court's decision serperfluous. [00:22:09] Speaker 02: If ammys at the C1 action end were obvious, the court didn't have to talk about claim scope. [00:22:14] Speaker 02: It didn't have to say, go through all the analysis and say, look, [00:22:18] Speaker 02: You only look to see if any embodiment is obvious. [00:22:21] Speaker 02: It wouldn't have to go and say that the plants include carboxylic acids and esters. [00:22:25] Speaker 02: It wouldn't have to say the carboxylic acids and esters are in the prior art. [00:22:29] Speaker 02: There would be no reason for any of that. [00:22:34] Speaker 02: For that same reason, any decision regarding ammutes, if you tried to read the decision as reaching ammutes, wouldn't be necessary to the court's decision. [00:22:43] Speaker 02: It needs to be not merely actually decided, but necessarily decided. [00:22:46] Speaker 02: And there's simply nothing necessary reaching to ammutes when the court, once it found that carbolics acid and esters were claimed, and once it found that those were disclosed in the power art, that was the end of the game. [00:22:57] Speaker 02: That meant that the claims were obvious. [00:23:03] Speaker 00: And with respect to whether or not... You might want to focus more on written description. [00:23:08] Speaker 00: Certainly. [00:23:08] Speaker 00: And the jury instruction. [00:23:10] Speaker 02: Okay. [00:23:10] Speaker 02: So if we start with the jury instruction in that case. [00:23:15] Speaker 02: As an initial matter, that objection is doubly forfeited. [00:23:18] Speaker 02: At the time the testimony came in, there was no objection on the grounds that Sanandos is giving here, which is [00:23:23] Speaker 02: that describing that. [00:23:25] Speaker 03: They're not concerned about the testimony having come in. [00:23:29] Speaker 03: They're concerned that the jury was not told what the law is on teaching away, which is essentially that silence is not teaching away. [00:23:39] Speaker 03: I don't see how that's forfeited. [00:23:41] Speaker 03: They complied with the jury instruction timing. [00:23:44] Speaker 02: Well, insofar as their objection is, they needed the instruction because it was wrong on the law. [00:23:48] Speaker 02: That had to come when he came in and he got a curative instruction. [00:23:53] Speaker 02: That does not constitute teaching away, even though the expert said it was default. [00:23:57] Speaker 02: They didn't preserve it with the jury instruction objection? [00:24:01] Speaker 02: No, Your Honor, because when you think something is wrong as it's given, it's not properly described as teaching away. [00:24:07] Speaker 02: You would want a curative instruction at that moment. [00:24:09] Speaker 02: You don't wait until days later. [00:24:11] Speaker 02: You might want it. [00:24:12] Speaker 03: I don't know if you have any authority for the proposition that if you don't stand up and object to everything that's not legally correct in a testimony, you can't ever ask for a correct jury instruction. [00:24:24] Speaker 02: I think the 10th Circuit's decision in digs is actually supportive of that, but even if the court disagrees with me. [00:24:29] Speaker 02: There is actually no error here. [00:24:31] Speaker 02: Because what the expert, and this is what the district court was explaining at 10,766, is the expert was merely making the fair point that Johnstone doesn't mention the Woodward's advocates. [00:24:43] Speaker 02: It's a silent test to those. [00:24:45] Speaker 02: And under this court's decision of Polaris, that's relevant. [00:24:48] Speaker 01: That's something you take. [00:24:49] Speaker 01: You were arguing that silence is teaching away and based on your expert, right? [00:24:54] Speaker 02: No, Judge, I think my argument is very different. [00:24:57] Speaker 02: Because if you go to the, our expert was testifying, what's relevant here is under Polaris, if you don't mention something, if you state a preference for other things, that's relevant to the motivation of the mind. [00:25:10] Speaker 02: It's relevant. [00:25:10] Speaker 02: It's something the jury can consider. [00:25:12] Speaker 02: And if you look at the instruction here that was given on teaching away, [00:25:16] Speaker 02: The jury wasn't told teaching way has a special effect, that it forecloses motivation combined, that it has some particularly powerful impact other than that something can be considered. [00:25:26] Speaker 02: It was only told to take it into account, but that is also a correct instruction for what [00:25:32] Speaker 02: our expert, Dr. Reed, was saying. [00:25:33] Speaker 03: When you combine it, your expert said that Johnston taught away. [00:25:40] Speaker 03: You have to concede he said that. [00:25:41] Speaker 03: Of course. [00:25:42] Speaker 02: But you can't find prejudice, because even if what he said wasn't teaching away, the jury instruction only said what it said about teaching away was equally true of what our expert was talking about, which is stating a John's preference that doesn't include something. [00:25:57] Speaker 02: That's something the jury can take into account, too. [00:26:00] Speaker 02: The jury could take into account [00:26:02] Speaker 02: teaching away, it could take into account a generalized preference against. [00:26:05] Speaker 02: So failing to distinguish between the two. [00:26:07] Speaker 00: I'm not following that. [00:26:09] Speaker 00: I mean, clearly, he said the word is teach away. [00:26:12] Speaker 00: It teaches away. [00:26:14] Speaker 00: He says it twice. [00:26:16] Speaker 00: So what are you saying about the instruction that was requested that would make that OK? [00:26:22] Speaker 02: So if the court turns to 10,482, which is the instruction that mentions teaching away, [00:26:27] Speaker 02: All it says tells the jury is that you can take into account factors such as, and it includes whether the prior art teaches away. [00:26:34] Speaker 01: That's exactly the problem. [00:26:35] Speaker 01: But that testimony was permissible under the instruction that was given and wasn't permissible under the instruction that was rejected. [00:26:44] Speaker 02: So if that instruction had said, you may take into account factors such as the fact that something is silent and has a preference against a particular [00:26:55] Speaker 02: compound, that would also be a correct instruction. [00:26:58] Speaker 02: And so it's simply not prejudicial that this got lumped in as teaching away, as opposed to, you can consider teaching away. [00:27:04] Speaker 02: You consider something that doesn't include. [00:27:06] Speaker 00: It hadn't been given the label teaching away. [00:27:09] Speaker 00: Pardon? [00:27:09] Speaker 00: It was given the label teaching away in the closing and by the expert, right? [00:27:14] Speaker 00: Yes. [00:27:15] Speaker 02: I think that's the only difference here that they're complaining that they said it was a mistake to use the label teaching away. [00:27:20] Speaker 02: But taking into account the factor, what the expert actually said, was something that the jury was allowed to take into account. [00:27:29] Speaker 02: And the instruction doesn't say, hey, you have to give this special effect because it's teaching away. [00:27:36] Speaker 02: The jury was also allowed to take this into account. [00:27:39] Speaker 02: In fact, it would have been misleading to the jury to limit it to say, you can only take into account teaching away. [00:27:44] Speaker 02: Because then that would apply to the jury that you can't take into account the fact that there's no one asked the judge to do that. [00:27:50] Speaker 03: So that's irrelevant. [00:27:51] Speaker 03: What they asked the judge to do was give affirmative examples of what teaching away is. [00:27:57] Speaker 03: And for some reason, you objected to that. [00:27:58] Speaker 03: And it left the jury, I think, with a misunderstanding of what the law is. [00:28:03] Speaker 03: So I mean, assume that's what I think. [00:28:07] Speaker 03: Can I still affirm here? [00:28:08] Speaker 02: Yes, because the error was absolutely harmless beyond any doubt. [00:28:12] Speaker 02: Because what the jury would have considered teaching away was merely something that was allowed to take into account. [00:28:18] Speaker 02: And what the jury considered as teaching away was something that it could take into account. [00:28:22] Speaker 02: And the instruction doesn't tell them anything about teaching away that's any different than what you instruct them with respect to what doctors say. [00:28:28] Speaker 00: To make sure I understand your point, are you saying because they weren't told that if something teaches away, it per se isn't obvious, that we don't have to worry about the use of that label? [00:28:39] Speaker 02: Judge Dole, that is a much better explanation of what I'm saying. [00:28:43] Speaker 02: What was described as teaching away here and how the jury take into account is a 100% perfectly accurate description of how you would treat the testimony that Dr. Reitz gave, that Johnstone states a preference that excludes ammutes. [00:28:57] Speaker 02: That's something you're allowed to take into account when they're addressing obviousness, or when they're addressing obviousness. [00:29:05] Speaker 00: Do you want to talk about written description? [00:29:07] Speaker 02: Yes. [00:29:07] Speaker 02: Why don't we go to written description? [00:29:09] Speaker 02: So Sandow's case is a doubly high burden here. [00:29:13] Speaker 02: It's not merely that they have a clear and convincing burden before the jury. [00:29:16] Speaker 02: They have to prove to this court that no reasonable jury could think they failed to meet that clear and convincing standard. [00:29:23] Speaker 02: And there's two key points that make it clear that the jury could reasonably find they didn't make that very demanding person. [00:29:29] Speaker 02: And the first is the testimony of the experts. [00:29:31] Speaker 02: Their expert, our expert, was that they only gave 13 compounds for the R1 position, and that you could easily visualize all 13. [00:29:39] Speaker 02: Sandoz's expert, Heathcock, admits the patent discloses this is at 10,518. [00:29:43] Speaker 02: This goes to 13 options. [00:29:45] Speaker 01: But the 13 options include hundreds of thousands of compounds, right? [00:29:53] Speaker 02: So our expert explained that there was only a limited subset that could be expanded, and that's at page 10,671. [00:29:59] Speaker 02: But in addition, look, there's nothing that Sandoz puts forth that says, gee, skilled artisans would have understood all of these to be sufficiently meaningfully distinct, that they're not brown cow, black cow distinctions. [00:30:12] Speaker 01: The problem with column eight is that there is a reference to the most preferred option, and preferred options, and the compound that's being claimed here doesn't fit into either category. [00:30:23] Speaker 02: It's correct that that is not given as preferred in that instance. [00:30:29] Speaker 02: But the jury looks at all of the evidence. [00:30:31] Speaker 02: And first piece of evidence is we have a very limited set, 13 options. [00:30:36] Speaker 02: And the one that's very clearly set forth, it's not a lot of options. [00:30:40] Speaker 02: It's ammys. [00:30:40] Speaker 02: It's right there set forth as one of the options. [00:30:42] Speaker 02: Which is not preferred. [00:30:43] Speaker 02: Pardon? [00:30:43] Speaker 02: Which is not preferred. [00:30:45] Speaker 02: which is not list as preferred. [00:30:47] Speaker 02: But then it goes on that every week, the question is put a skilled artisan and visualize, understand that you had possession of amnions. [00:30:54] Speaker 02: And looking at it specifically put forth as one of the 13, every expert agreed that you could visualize it there. [00:31:00] Speaker 02: Heathcock said that it was a tree, not a forest. [00:31:03] Speaker 02: He said that he could visualize it. [00:31:05] Speaker 02: That's a 10,519. [00:31:06] Speaker 02: I would encourage the court to read that examination, because it's very clear that he's conceding, yes, I could go one by one and visualize that one. [00:31:13] Speaker 03: Even when you take into account the redirect? [00:31:15] Speaker 02: even if the jury is not the jury is not required to believe that the effort to we have to say it's it's reasonable for them not to have concluded that it was a clear and convincing and they also had dr. Reitz who's not subject to a readout who says that a skilled artist and looking at the specification would have no trouble visualizing the claim prostamines that's ten thousand seventy lines one to three it's right in that record we're going to the other thing is [00:31:43] Speaker 02: In addition to actually being only 1 of 13, the specification, so we've got a narrow class, Abbe versus Jansen, we have that narrow class. [00:31:50] Speaker 02: That's really important to whether or not you can visualize it. [00:31:52] Speaker 01: How do you get around the fact that this one isn't the one that's not labeled preferred? [00:31:57] Speaker 01: Even though it's not labeled preferred? [00:32:00] Speaker 01: Surely the reference to other compounds or classes of compounds being preferred leads away from this one, right? [00:32:07] Speaker 01: But still, it's clearly 1 of 13. [00:32:09] Speaker 01: Yes, no. [00:32:09] Speaker 02: Potentially, but it's only 1 of 13. [00:32:11] Speaker 02: And there's other places in the specification that point right at it. [00:32:14] Speaker 02: For example, at page 10,000, 525, Heathcock concedes that the inventors, quote, called out the ammutes as something they were specifically inserted in by putting them in each of the four disclosed synthesis schemes. [00:32:25] Speaker 02: Dr. Reed, our expert, says the same thing. [00:32:28] Speaker 02: Each of the four synthesis methods testified provides for preparation in ammutes. [00:32:31] Speaker 01: Earlier, I gave a hypothetical explanation that there are three [00:32:40] Speaker 01: And there isn't any reconciliation by your expert or anybody in the record as to why you would choose that paragraph in the synthesis discussion as the guidepost as opposed to the other possible guideposts, which the end product of the synthesis is to reach a sulfur anemide. [00:33:02] Speaker 02: If that were true, Judge Dyke, that would be. [00:33:03] Speaker 01: You're interrupting me. [00:33:04] Speaker 01: I apologize. [00:33:06] Speaker 01: Or the preferred options in paragraph column H. [00:33:10] Speaker 02: So if that were true, that would mean that Sandoz has to lose because it's their burden by clearing fencing evidence. [00:33:17] Speaker 02: And then on top of that, it is not, in fact, true. [00:33:20] Speaker 01: Why do they have to lose? [00:33:21] Speaker 01: If there's three possible paths here and nobody tells you why you can reject the column 8 path, [00:33:30] Speaker 01: Why isn't someone who's looking at this left with no guidance as to which path to follow? [00:33:37] Speaker 02: Because the question is, for written description, would a skilled artisan be able to visualize, would a skilled artisan be able to recognize, would a skilled artisan know that you have possession of [00:33:48] Speaker 02: the compound of the claimed compound. [00:33:52] Speaker 02: And the answer is going to be clear, because if there's only three Judge Dyke, they're going to be able to visualize all three. [00:33:58] Speaker 02: If there's 13, the testimony is you can visualize all 13. [00:34:02] Speaker 00: It's not that hard. [00:34:04] Speaker 00: What you just said, does that argument require me to agree? [00:34:09] Speaker 00: that when I look at the 13, it's just 13, as opposed to each one of them themselves being a vast number beyond 13. [00:34:19] Speaker 00: Each one could be hundreds of options. [00:34:23] Speaker 02: Yeah, and I think the answer is no, because there's no testimony that says that when you look at these, [00:34:30] Speaker 02: The skilled artisan is going to think, well, these are all vastly different. [00:34:35] Speaker 02: And the jury is required to accept that these are all so vastly different that the skilled artisan wouldn't be able to do it. [00:34:39] Speaker 02: And Heathcock himself said, gee, I can look at these 13, and I can visualize each one of them individually. [00:34:46] Speaker 02: They were all vastly different things. [00:34:49] Speaker 02: They were so different, he would not have been able to say, yes, I can visualize them all out one by one, that there's 13. [00:34:55] Speaker 02: He wouldn't have admitted that it was a backyard, not a trees. [00:34:58] Speaker 00: But did he have a nomination to make sure that he didn't oversimplify it into just 13 categories and talk a little bit more about all the possibilities within those categories? [00:35:10] Speaker 02: So if he said he [00:35:13] Speaker 00: to avoid being conclusory or not supported by substantial evidence kind of thing. [00:35:18] Speaker 02: No. [00:35:19] Speaker 02: Again, the burden is on Sandoz. [00:35:22] Speaker 02: But if there were these amazing numbers of compounds that skilled artisans would have thought were very different, and there are tens of thousands of them, somebody is not going to be able to visualize each of them and say, oh, that's just merely a backyard. [00:35:34] Speaker 02: That's just simply contradicting what the expert said. [00:35:37] Speaker 02: It's contradicting what our expert said. [00:35:39] Speaker 02: It's 13 meaningfully different compounds. [00:35:41] Speaker 02: And ammutes stands out. [00:35:43] Speaker 02: There's no question about how broad ammutes are, and it's right there as one of them. [00:35:48] Speaker 02: And then there's synthesis schemes over and over again. [00:35:50] Speaker 02: Four different syntheses specifically call out ammutes each time. [00:35:55] Speaker 02: The jury, the expert admitted that this is something that somebody would be called out as something that inventors were specifically interested in. [00:36:03] Speaker 02: This is simply not a case where you have billions of possibilities, and the skilled artisan is on a hunting expedition. [00:36:09] Speaker 02: It's a narrow set of claims. [00:36:11] Speaker 02: And it points directly to it through the synthesis schemes, through listing the amines as one of 13. [00:36:17] Speaker 02: And it's simply just not the case you can say, oh, the jury didn't have enough evidence there, especially on the birdie. [00:36:23] Speaker 03: On the Z end, I don't want to lose sight of that. [00:36:26] Speaker 03: I understand how the patent says, [00:36:29] Speaker 03: If you get to aromatic groups, phenol is most preferred, I think. [00:36:34] Speaker 03: But what blazemark is there in the patent that tells me I should get to aromatic groups among a choice of, I think, eight different types of groups listed for Z? [00:36:43] Speaker 02: So again, that's a maximum of eight. [00:36:45] Speaker 02: This is way beyond a forest. [00:36:46] Speaker 02: This is just talking about an even smaller backyard. [00:36:50] Speaker 02: Maybe you'd have an Arlo. [00:36:50] Speaker 02: But I think within those eight are multiple possibilities, correct? [00:36:55] Speaker 02: So I think in addition to saying among aromatics, phenols are most particularly preferred. [00:36:59] Speaker 02: If you take a look at the embodiments that are set forth, there's at least 10 of them that are compounds using phenyl for Z. So it's pointing to phenyl in particular, which is a subset of aromatics. [00:37:10] Speaker 02: If you look to appendix 136, column 9, the bottom one, that's a phenyl. [00:37:15] Speaker 02: 138, column 3, top and bottom ones are phenyls. [00:37:18] Speaker 03: Is there any testimony at trial from which the jury could have found [00:37:25] Speaker 03: at least, that there's not clear and convincing evidence that you wouldn't head towards the phenols. [00:37:31] Speaker 03: I know there's a lot of negatives, but I think you follow me. [00:37:34] Speaker 02: What's the testimony on that point? [00:37:35] Speaker 02: I think the testimony on both sides for phenols is relatively thin. [00:37:37] Speaker 02: But the patent itself is very clear in calling out fennels over and over again. [00:37:42] Speaker 03: Is there any testimony you can point me to that would support a finding that a person of skill in the art would think that the aromatic groups is supported by a blaze mark in the patent? [00:37:55] Speaker 02: Oh, the aromatic groups are supported by a blaze marker. [00:37:58] Speaker 03: Because I'll give you, you know, the patent says phenols are most preferred once you get to aromatic groups. [00:38:04] Speaker 03: But I'm stuck on what's the evidence supporting you would get to aromatic groups. [00:38:08] Speaker 02: Right. [00:38:09] Speaker 02: I think the first is that the aromatic groups are just one of eight. [00:38:12] Speaker 02: But the testimony was that the backbone consists of X, Z, and R2, X and Z being their thing. [00:38:21] Speaker 02: And that the backbone does not make a difference. [00:38:24] Speaker 02: And then when the backbone doesn't make a difference, that skilled artisan isn't going to much care about whether it's fennel or not. [00:38:30] Speaker 02: It's just simply not a material difference. [00:38:32] Speaker 02: So you're contending we should say there do not need to be blaze marks for the Z, for what's placed at Z. I think a skilled artisan would understand that the essentially generic background includes Z. And you don't need blaze marks, because that's what's going to make a difference for the binding, is the C1 action end. [00:38:51] Speaker 02: And Sandoz Heathcock admitted that, and Reid's agreed. [00:38:54] Speaker 02: But even apart from that, if you're looking for fennel, which is what the claim is, that's replete through the patent. [00:39:01] Speaker 02: And what I was pointed to when we pointed to in the brief is when you look at the examples, time and time again, it's not merely an erratic group. [00:39:08] Speaker 02: It's fennel, fennel, fennel. [00:39:10] Speaker 00: Did you say there's 10 examples with fennel? [00:39:12] Speaker 02: Yes. [00:39:13] Speaker 00: Out of how many examples? [00:39:14] Speaker 00: It's 90-something, right? [00:39:15] Speaker 02: Yeah, so this is the second highest group of anybody. [00:39:18] Speaker 02: So it's like if the skilled artist is looking at this, they're going to realize that Fennel is very important. [00:39:23] Speaker 02: So it's number two. [00:39:24] Speaker 02: The only thing I'm concerned about, if it was like 10 out of 20, sure. [00:39:27] Speaker 02: But 10 out of 90 something? [00:39:29] Speaker 02: I think it's more like 10 out of 40. [00:39:31] Speaker 02: But if you look on every page as you walk through, there's usually six to eight a page. [00:39:34] Speaker 02: And Fennel is almost always one of those top. [00:39:36] Speaker 02: So for example, if you look at appendix 150, [00:39:39] Speaker 02: second up from the bottom, and the top row. [00:39:42] Speaker 02: Those are both fennel. [00:39:44] Speaker 02: Time and time again, the fennel's called out in these examples. [00:39:47] Speaker 02: And to say that the jury is required to ignore that, that here it is over and over again fennel, and the juries have to say, well gee, I can't tell which one of the eight. [00:39:55] Speaker 02: That doesn't make sense. [00:39:56] Speaker 02: But even if we say eight possibilities, including fennel, and [00:40:00] Speaker 02: 13 possibility, including amines. [00:40:02] Speaker 02: That's, what, 104? [00:40:04] Speaker 02: Skilled artisans can visualize 104 possibilities. [00:40:07] Speaker 02: That's not hard. [00:40:08] Speaker 02: It's not just the 14 addressable. [00:40:09] Speaker 01: Except that there are lots of compounds within the groups which multiply the number considered. [00:40:14] Speaker 02: But I think, Your Honor, first, the vast majority of that variation [00:40:19] Speaker 02: is in the hairpin background. [00:40:22] Speaker 02: And that doesn't count. [00:40:23] Speaker 02: I think everybody agrees it doesn't affect the binding. [00:40:27] Speaker 02: But even the notion that the ammute group is among a larger set of groups, there's simply no basis for thinking that those other groups are so overwhelming that the skilled artist isn't going to see ammutes and doesn't recognize the possession of ammutes. [00:40:42] Speaker 02: When ammutes is set out very directly as one of 13, you just can't miss it. [00:40:47] Speaker 02: And when you go to the synthesis schemes, it's ammions in each and every one of those. [00:40:54] Speaker 02: And Sandoz's expert admitted that this is something that a skilled artisan looking at the specification would have recognized, that the inventors were calling out the ammions as something they were specifically interested in. [00:41:06] Speaker 00: What about what's your response? [00:41:07] Speaker 00: I just have one last question, which is what is your response to the point that even R3 is something that varies? [00:41:15] Speaker 02: So even R3 is something that varies. [00:41:17] Speaker 00: Yeah. [00:41:18] Speaker 00: And looking at what the group is that relates to claim 30. [00:41:24] Speaker 00: And it's got that R3 in it. [00:41:25] Speaker 00: And then you've got column 8 saying R3 can be this, that, or the other. [00:41:30] Speaker 02: So there's only three options there, which is methyl, ethyl, or isopropyl. [00:41:36] Speaker 02: That's simply not that big a deal. [00:41:38] Speaker 02: And everybody is going to recognize those as the three basic hydrocarbon groups. [00:41:43] Speaker 02: There's nothing particularly. [00:41:45] Speaker 02: And the three most preferred R3 are claimed. [00:41:48] Speaker 02: So there's no real written description on that, because all three of those are claimed. [00:41:53] Speaker 02: It's not as if those expand the possibilities, and we have a narrow set of those. [00:41:57] Speaker 02: Each one, R3 methyl ethyl isopropyl, each is claimed. [00:42:03] Speaker 02: There's a precise correspondence for that one between what's disclosed and what's claimed, which means it can't affect the written description. [00:42:09] Speaker 02: What's in the spec is what's in the claim. [00:42:12] Speaker 02: OK, I think we're out of time. [00:42:13] Speaker 01: Thank you, Your Honor. [00:42:14] Speaker 01: Thank you. [00:42:18] Speaker 01: Forgive me for three minutes. [00:42:25] Speaker 04: Thank you very much. [00:42:26] Speaker 04: I'm going to do a written description first and then turn back to the jury instruction. [00:42:29] Speaker 04: I want to disagree quite vigorously with the idea that Dr. Hethcock suggested that Z is just part of the backbone and is irrelevant. [00:42:35] Speaker 04: Not only have I cited you twice to the other side's expert admitting that that's wrong, there was also an exchange. [00:42:40] Speaker 04: Unfortunately, I don't have the page number for it, but I will get it for you. [00:42:43] Speaker 04: In which trial counsel asked Dr. Hethcock, this is the backbone, right? [00:42:47] Speaker 04: And he said, no, because you've included Z. And she said, no, I'm sorry, exclude Z. [00:42:52] Speaker 04: So Z is absolutely not part of the backbone. [00:42:54] Speaker 04: It is not something that could be dismissed. [00:42:56] Speaker 04: So now to the more fundamental question, Mr. Lampkin says, gosh, there's only 13 compounds. [00:43:02] Speaker 04: And the 13 compounds include the amides. [00:43:04] Speaker 04: I want to just remind the court of two important things. [00:43:07] Speaker 04: One, which amides? [00:43:09] Speaker 04: All of these references to the amides don't necessarily mean the right amides. [00:43:12] Speaker 04: And then the second point is, each of these things has to be in combination with the rest of the molecule. [00:43:18] Speaker 04: There's enormous variation at X, and there's variation at Z. And so for Mr. Lampkin to say, I've found a bunch of examples of phenyl in the tables. [00:43:27] Speaker 04: None of this was testified to at trial, by the way. [00:43:29] Speaker 04: This is something Mr. Lampkin came up with on appeal. [00:43:33] Speaker 00: Can we look at the written description beyond what was testified about? [00:43:37] Speaker 04: Sure. [00:43:38] Speaker 00: But I just wanted to know. [00:43:40] Speaker 00: I mean, right? [00:43:42] Speaker 00: It's part of evidence. [00:43:43] Speaker 04: We do not have a problem with that. [00:43:45] Speaker 04: But it is important. [00:43:47] Speaker 04: If Mr. Lampkin is going to talk about who's expert admitted to what, it's important to remember that no expert testified. [00:43:52] Speaker 00: It goes four ways. [00:43:52] Speaker 00: I hear you. [00:43:53] Speaker 04: And all those 10 phenols, not one of them is connected to an omit. [00:43:58] Speaker 04: Nor does that get you anything about the enormous variation within x [00:44:02] Speaker 04: Remember that X can drive which Z is preferred and they don't have any explanation at all for how you get down from the X's in the priority application down to the subset of X's that are actually claimed. [00:44:16] Speaker 04: I think those are the key points on written description that I wanted to make except I guess for one last reminder which takes us sort of back to teaching away. [00:44:24] Speaker 04: Remember their teaching away testimony was better not be fennel, right? [00:44:28] Speaker 04: So they certainly can't look to anything in the prior art to get fennel at that Z position. [00:44:34] Speaker 04: On the jury instruction, just a couple things. [00:44:38] Speaker 04: I think Judge Stark, you had it exactly right. [00:44:40] Speaker 04: Teaching away is a fact question. [00:44:42] Speaker 04: So we testified that there was no teach away. [00:44:44] Speaker 04: They testified there was a teach away. [00:44:46] Speaker 04: That should have been refereed by the jury under a proper jury instruction and under the 10th Circuit standard for prejudice. [00:44:51] Speaker 00: What about the idea that the jury wasn't told what the implication was for teaching away? [00:44:55] Speaker 04: I understand the point, but I also think that if you look at the three places in which their expert uses TeachAway, the two that we talked about, and 10664 as the third, that you can see that he's alluding to it as a legal concept. [00:45:11] Speaker 04: In other words, he's drawing a conclusion. [00:45:13] Speaker 04: Well, I think he's drawing authority from it. [00:45:16] Speaker 04: In other words, that he's invoking this legal concept in front of the jury to say that I think the term is teaching away. [00:45:22] Speaker 04: In other words, he's cloaking his opinion in the legal terminology. [00:45:27] Speaker 04: But if he's going to do that, then you have to take the bitter with the sweet and have it judged under the correct legal standard. [00:45:31] Speaker 04: So all of this idea that this is just a Polaris argument, that's not how it was presented to the jury. [00:45:37] Speaker 04: They wanted something with more oomph, and that's why they invoked teaching away. [00:45:42] Speaker 04: So last point is just that the district court did not say, I'm not giving this instruction because there will be no prejudice. [00:45:49] Speaker 04: The district court said, one, I like the Federal Circuit Bar Association instructions, and two, I don't think they really are arguing teaching away. [00:45:56] Speaker 04: And I think that our quotation from their slide saying, science taught away from invention in two ways. [00:46:01] Speaker 04: And the quotes that we've given you have refuted that. [00:46:04] Speaker 04: Mr. Court, any further questions? [00:46:06] Speaker 01: OK. [00:46:06] Speaker 01: Thank you, Mr. Terry. [00:46:07] Speaker 01: Thank both counsels for the cases submitted. [00:46:09] Speaker 01: That concludes our session for this morning.