Morning everyone. First case this morning is number 041562, Astra, Actibra, Log, Against, and Rex, for Missuda. Miss Dale. May I please the court, Margarita from Pascal Rose, for the appellent, Cross-A-Pelley, and Rex, for Missuda, for Missuda. In honors this morning I'd like to address two issues. First, the District Court committed legal error and failing to decide Andrews counterclam of inequitable conduct. Inecrable conduct and fraud is a basic building block together with unclean hands of Anne Fax's infectious unenforceability counterclam. If the keystone driller doctrine of infectious unenforceability doesn't apply to this case, which is beyond exceptional, then the doctrine is dead. We've proven that Astra used its amethasol patents in Korea to open the finals of its competitor. Now the merits are not before us. So you really need to concentrate on why the judge somehow abuse the discretionary decision not to reach this issue. Because she should have reached this decision because under plain control and bill decks, Anne versus entitled to a determination on its counterclam. The court has said repeatedly that inequitable conduct is one form of unenforceability in hands. She did reach that. Yes, she determined that Anne versus unenforceability in hands counterclam, she rejected it. Without determining the component of the inequitable conduct, which is a basic building block, we've proven that, and that after misrepresented, the origin of the process claimed by the 2801 count. Now we were talking about the merit
. We soon need to know why this issue needed to be decided after a judgment in your favor. Because the wrongdoing was, the inequitable conduct was intertwined with the unenforceability of the hands before the district court, which would then render, which would lead to an infectious unenforceability of the patents ensued, the 505 and the 230. The court has- Is that the point that the other patents would be affected? Yes, ma'am. Because of the relatedness component. Keystone drillers and consolidate an aluminum core, both require that there be a relatedness among the patents. We've proven that here. Well, that's really what I'm trying to understand. Your position is that, unless relatedness is established, inequitable conduct does not need to be decided. I'm arguing that inequitable conduct needs to be decided as part of our infectious unenforceability claim. And that is- And that the infectious unenforceability- But the 2801- is in a different family than the 505- 230 and different priority applications, and was filed nine years later for heaven's sake. Consolidated aluminum doesn't require a familiar relationship. They have to have an immediate- Oh, but there's got to be- In fact, it's got to be close enough to infect. This is kind of- A distant cousin. Your Honor, the judges district court- Getting cousins, huh? Your Honor, the judges, on the opinion that appendix A6- She court- It says, thus the result of the 281 process- Is to manufacture a formulation for a proton pump inhibitor- Like that, claimed in the 505 and 230 patents- Which has three distinct ligers. The relation is right there. It's the same subject matter
. The specification of the 281 patent refers to the 505 patent expressly- This is at appendix A48- And it says, there is a demand for a new process- That is not as complicated as the three-step approach in the 505 and 230. This is an improvement- And so it's just- I'm sorry, good. I was really to pursue the same- The same- Your position then is that if the patentee is shown to be- Let's say a bad actor in one case- That every other patent- No. Related subject matter is then invalidated- I'm not saying that, Your Honor. I'm saying that in this case- Ashton brought the 281 against Andrex specifically- And with the 505 and 230 in the same proceeding- The district court- Spend resources- Devoted time- The product- The trial was delayed- There is relatedness- Because of the same subject matter- That's what I'm saying- But they won on the others- That we have- That are just having to finish the 505 and 230. So those were well justified- So justified that they prevailed- I'm trying to figure out why they have somehow tainted their case- By- By having another patent- But- The court eventually found an invalid- They brought the 505 and 230 against Andrex- And then asserted the 281 in addition to that- The assertion of the 281- And the entire reason why they went and procured the 281- Was because they saw that there was a chick in the wall- The patent wall- The 505 and 230 didn't cover a process of a spontaneous subcook forming- They found that because they learned about it from CKD- In proceedings in Korea- So then they go and apply for the 281- And then bring it against Andrex- In the district court- So the district is the more- Now, the arithmetic- You're discussing merits that were not decided- By the district court- So let's really stick with the question of- Infection- Or whatever it is that- That is fundamental- Why this needs to be decided- Could I just a procedural question here- This is the Phase II appeal- Which was dedicated as I understand it- The 281- Phase II and Phase IV, correct- But the other patents were not really an issue in this phase- As to which this appeal is coming up- Aren't you really trying to- In effect go back- And deal with issues that have already been addressed- In connection with the other patents- I don't agree- On enforceability- Inoperable conduct- With respect to the 281- In our Phase IV- Proof- That was how the judge- With respect to the 281, that's right- But what we're doing- What we're now doing is that the reason that- That issue ought to be decided is because- If you should prevail on that- That would give you a leg up for prevailing on the infectious- With respect to patents that are not at issues here- Why isn't that an issue that should be addressed- Or should have been addressed or could- Yeah, you're on- Rule 60 or whatever around- It could be addressed in connection with another phase- Not the 281 phase- So you're on- That was the way that the court procedurally- Phase- Phase II was purely a determination of- In validity and infringement of the 281- Phase IV was our equitable defenses- That related to the 281- Which included infectious- But- What's the current state of the 505 and the 230 litigation? That's- It's been completed- There was a decision on this court in December of 03- And forming the district court's determinations with respect- There's nothing else pending with respect to those patents, correct- Right, except for this- Well, except- That's the question, isn't it- Have you in effect lost your opportunity- To challenge inequitable conduct- Whether infectious or otherwise- With respect to those patents- By virtue of the judgment that's been entered with respect to those patents- In the earlier phases of the case- That's really my question- Well, our argument is- Is milk- We didn't lose that- Because we- Why not? I mean, did the judge say- Well, wait on any question of inequitable conduct until- Let's have a time to accept those cases- Let's just look at the question of inequitable conduct- Uninforceability of the other patents- Well, we are- Did you prohibit you from litigating that question in the early proceedings? We- Would argue that she did? She- By virtue of failing to address the inequitable conduct component of our counter-plane- In phase 4- She foreclosed us from raising this issue- To this court in an earlier time- We had to wait until she made the certain determination on phases 2 and 4- Which followed her determination on phases 1 and 3- It was the procedural outcome of the way the past was faced- And- By failing to address the inequitable conduct at all- And dealing with it- And choosing to determine that unclean hands- She rejected our unclean hands argument without- And addressing one large component of that- That is legal error- And a minimum that has to be remanded to her for- For factual findings- The other issue that I- Would like to raise with the court- Is the legal error that was committed by the district court- In finding that Andrews' product infringes the 280-1 patent- The district court never determined that- The water solubility limitation of claim- One of the 280-1 patent was met- The patent is at- A- 53 of the patents- Instead, the district court relied on a prior ruling- Concerning the 505 and the 230 patents- That determined only that the product met the claim limitation- That the sub-code layer- Pote soluble or rapidly disintegrating in water- Now you're in here, you're in a battle time- You may use it, of course, through the sargum- Or say that it's up to you. The only point- Your honor is- I'm going to use it at this time- Is that this court in the prior ruling- Affirm the district court on finding a rapid disintegration- Which was- One- One part of the 505-230 claim limitation- It could be either water soluble or rapid disintegrating- Or reading from the court's decision of 12-11-03- Pote. The claim to require only that the sub-coding- Rapid disintegrates in water- The district court credited evidence- That insoluble particles- Within otherwise soluble film material- Do not necessarily prevent the overall film- From disintegrating in water- So you're saying that's not for law of this case? Correct. The claim limitation here is water-soluability- It hasn't been met. Thank you. Thank you, Dale. Mr. Taylor? Yes, it is, of course, the court. I will tell you- I have no day for AstraZeneca. What we have counseled table is J. Alexander also- To address first the issue of whether the court's decision- Not to make the deal of harm is with regard to inequitable- Conn of this proper- And I say it was absolutely proper- Because this court- Rooing on an inequitable conduct- Could not effect any legal right of the parties- And be it water- Andrix has no current- Ability to prevail on a claim for term speeds
. It has no viable antitrust counterclamates- That these inequitable conduct claims could affect. And its arguments with regard to enforceability- With regard to infectious- Uninforceability were not properly brought forth in this court- And if they were before the court- They would not- They could not lead to impolite- Of the final five and two three-o- Past. Now, when you say that the- There is no viable antitrust counterclams- Did the trial court- Dispose of the antitrust counterclams in your view- I read the judgment- And the judgment seems to address affirmative defenses- But not the affirmative counterclams- Do you understand- With specific reference to counterclams of 18 and 19- Did the court dispose of those counterclams in its judgment- It did not, there are- The antitrust- Where are they now? They were severed and stayed- Severed and stayed- Now, to the- Andrix did not plead antitrust counterclams related to- This two-o-one patent- Infectious- Uninforceability- Let me- Let me back up and get- Figure out exactly where we are on these days- So counts- 18, which is a 281 count- And 19, which is also a 281 count- And these are counterclams- You say we're stayed- And what- What's their status right now? They are stayed in front of judge-journ- In- So- No discovery or other proceedings has occurred- And- We have a final judgment here- Why if we've got counts that are still pending from the original complaint- And answer- What- Why is this a final judgment? Well, that's- That's- That's another issue in Andrix's notice and appeal. They didn't raise the antitrust counterclams as a reason why this case should not be properly enforced. Is-is an antitrust counterclam appropriate in a hatch-wax one for seating? Your- Remedy conceivably is to go into the marketplace- How is there an antitrust counterclam in a setting where you have an artificial infringement finding just to enable a court proceeding on validity? And- Andrix's antitrust counterclams were primarily based on a concept of sham litigation. We know now since AstraZeneca has prevailed in litigation that those claims will likely be dismissed if we ever get back to them. So- I'm not disagreeing to your greater that- In these kinds of cases, antitrust counterclams are- That's right. And- Perhaps sham litigation would be the one- Potential- But again, the sham litigation is a little hard because it starts by virtue of a process that allows them to more easily challenge you without having necessarily standing by infringing. I-I would agree with you again, Your Honor. That takes me back to the days of writing this thing which I have since regretted. We'd be out of business. Yes, fine. So back to the issue of the ugly clean hands part of Andrews' argument as to why the district court should have addressed the inevitable conduct arguments on the two-eight won't patent. Andrews' counsel just mentioned that there was this claim of infectious enforceability that the two-eight won patent was in some way tied to and related to the five or five or two-three-o patents. Well, it's not. As you mentioned, your greater patent was filed nine years after the filing of the five or five or two-three-o patents
. Any allegations of inequitable conduct with regard to the two-eight have to a one-hand has absolutely nothing at all to do with the five or five or two-three-o patents. Well, but that goes to the merits of the infectious unenforceability issue. I mean, you don't want us to address the merits that take it. We do not think it would be appropriate for this court to address the merits. So the question then is, what is the, let me ask the question this way, do you think that this is an issue that is simply not pertinent to the phase two and four phases of this case? We think the judge was absolutely correct, not to decide the inequitable conduct issue because the decision on that issue could not have affected any right of the parties before the court. You mean with respect to the two-eight, one patent being, I mean, it certainly could have affected the rights of the parties with respect to the other two patents. And if, for example, contrary to your submission, the judge had said, yes, there is an infectious unenforceability. Well, it's an hour of being clear that the judge would not have found infectious and forth-unenforceability. But again, that's on the merits. What I'm really trying to get at here is the question that I as Ms. Dale, which is whether the status of the five or five and two-thirty patents, which is what the infectious unenforceability ultimately goes to, is not an issue that was before the court in this phase of the case. Now, she says, well, it was, do you say that it wasn't, setting aside the merits altogether? Yes. And, Andrews clearly argued in phase four of the litigation that certain conduct of AstraZeneca would result in unenforceability of the five or five and two-thirty patents. But that conduct that they alleged below was the conduct that the judge specifically addressed in the opinion that we are now discussing in the field. The three areas where Andrews contended that litigation in this conduct would render the five or five and two-thirty patents unenforceability, not conduct with regard to the prosecution of the two-thirty patents. The judge specifically addressed those arguments with regard to this conduct raised by Andrews below and found that she was unimposing now, early unfersuaded by Andrews' arguments regarding unenforceability of the patents
. Now, how he'll be inequitable conduct arguments which were not addressed by the court have now morphed into another unclean hands allegation that Andrews have made into this court that was not clearly raised in the district court below. So, that's another reason why this court should not remand this case for findings on an equitable conduct with regard to the two-way one patent as it relates to the unencling hands argument because that argument was not properly raised before the district court. The judge was very clear in her opinion that she addressed the three areas of unclean hands raised by Andrews below and was utterly unfersuaded that they met the verdict. I'd like to talk just for a moment about two other things. One is Andrews' appeal of the non-infringent finding by court. Andrews was wrong when it said that the court did not find that its subcoding was more soluble, what it absolutely did. That decision was a burn button's court, it's law of the case and Andrews concluded from challenging that finding now. Also, with regard to the two-way one patent claims, the claims do not preclude the inclusion in the subcoding of materials which are insoluble. Now, the claims talk about a coding which is formed as a water soluble salt. For example, if you see claim one, that's what it says. The claim is formed as a water soluble salt. Confident to the patent says that the layer, this sub-separating layer, comprises the salt. The examples in the patent disclose interocoding polymers which include other materials in addition to those that form the salt, including materials which are water soluble. The judge Jones was correct when she decided that Andrews' subcoding which includes tap, small amount of tap which is an unsolvable material, still met the limitation of the two-way one patent claims that the salt that is formed is water soluble. Where was the reference to comprising again that you were.
.. It was in the two-way one patent column five lines 42 and 43. Ah, but not in the claim. The claim refers to a process comprising, not the layer comprising. Exactly. So, but you're referencing five and what is it? 42 to 43. Alright. Okay. I see that I am in my... Is there anything on the cross appeal you want to say? I did want to make just the statement or two about our cross appeal on the validity issues. Ashtray's out of good believes that the court clearly ear when it found that the CKD patent application anticipated the claims of the two-way one patent. When the CKD application, there was no evidence that it actually enabled the in-situ formation of a separator which is the..
. Well, it didn't teach anybody how to do anything but if all the ingredients were present, wasn't the reaction in the prior art, wasn't it in the public domain and therefore it doesn't anticipate? Absolutely no. The anticipation holding was based on the theory of inherently. Yes. The CKD application did not include process details that would lead inherently to the formation of a subcode. What were Judge Jermins' ear was to rely on supposed admissions by AstraZeneca in the Korean proceed. By you suggesting there could never be inherent anticipation of a process because, again, by virtue of the nature of inherently, something is always missing and processes are amenable to such easy change. Absolutely not. In this situation where the evidence was that there were certain conditions which were necessary to form an in-situ subcode. The only evidence of anyone repeating the CKD application was presented by AstraZeneca's employees and they testified that at 70 degrees the temperature disclosed in the CKD documents subcoding is not formed but at 42 degrees the temperature range disclosed in the AstraZeneca patent. Of course that process limit is not found in your claims. Indeed not in the claims. In enabling disclosure, of course can be in the specification. This is another area where Judge Jermins ear. She looked and said, well your claims disclose no more than the CKD application. Well that's not an appropriate question. The question is does the CKD application enable the production of an in-situ subcoding and does every possible of the parameters on which someone could repeat the CKD application? Would that invariably lead to the production of an in-situ subcoding? What she also relied on the testimony of Vannec Currie's, that's the right name and Lovegren
. Particularly with respect to Lovegren, he's testified as I read his testimony. With regard to examples, I think one at least and two perhaps, that which did not have process, they were purely contents, that a person of ordinary skill in the art would know how to do that process that would lead to the results of the invention. That seems to me pretty good description of the name. That testimony was taken out of context and that testimony is also in the context of the patent, two way one patent, which includes all that on the disclosure of our process information. It's quite another thing to say that that testimony about his patent then enables the processes disclosed by prior art reference, especially a reference that discloses on its face that a separating layer is not full. But they did discover that the separating layer was formed. Doesn't your argument have to be that they're discovery that under the specific conditions that were actually used in Korea, the separating layer was formed? Nonetheless, did not explain that at high temperatures it was not formed, for instance, and the other points that you've made. This is really a very difficult question and I think we might in large the time for both sides to explore it, because there was no charge as I understand it if derivation. We've been told that that was a strategic decision in order to obtain this infectious relationship. But so without a charge of derivation, it's entirely a question. Is it not of whether your argument that to be inherited must always necessarily be formed? Nonetheless, it's met because under the specific conditions which they observed, the layer was formed. And really how can you get around those scientific facts? I'll question the premise that under the specific conditions the layer was formed. Again, the CKD application does not disclose specific conditions which lead to invariably to the formation of an NC2 sub-gur. But they learned the conditions through discovery, I gather. Again, they did learn that through discovery in this Korean proceeding, they did get a batch record from CKD which is different than the CKD application. The judge's drawings relied on the CKD batch record is not my record
. It's not the court relied on for a decision. And the tie between the CKD batch record and the application is tenuous and best. What Ash was arguing in the Korean proceeding and which Andrews convinced the judge to rely on is that the product that Ashford sold in Korea has a sub-coding. CKD says that this product is made by a certain general process that has no process conditions attached to it. It's a process that they disclose as method A. And therefore some conditions that are within that method A lead to the formation of a sub-rate. Is that enough for a guarantee? Absolutely not. For an accuracy, Ashford has admitted the CKD application. It would have had to say first that every condition that anyone could use within that general disclosure of the CKD application invariably leads to the formation of a sub-rate. Ashford's like absolutely did not say that. And in fact they said the opposite. When they tested the CKD batch record at seven degrees the ordinary temperature for inter-recoding. The separating layer was not made but at 42 degrees the conditions that Ashford's scientist provides the separating layer of wars for. But in this case this is a tried case. So with respect to the anticipation issue I guess it says question of fact and the question is whether Judge Jones committed clear error in her findings. And she found as I read her opinion that crediting and interpreting the testimony of Vannecker and Lugren that a person of ordinary skill would know how to do this process and would achieve the result that was achieved in the Korean patent application
. Your argument has to be I guess with respect to at least those elements of her analysis that she clearly aired in her interpretation or that she simply could not properly have accepted the representations made by those two experts. Those two representations even if true doesn't convert a reference that does not disclose a separate separate layer into a document that based on inherently anticipates these claims that require the formation of an NC2 separated layer. That's where the court here to show inherently you must have clear convincing evidence that each and every time under all the various readable conditions that one could undertake to repeat that reference you would invariably come to an NC2 supplement. And remember this is a reference which was based on finding that you could produce this product without a separate layer. Okay, let's hear from the other side and we'll save you a rebuttal time. Okay, Mr. Newell, we're doing largest day of time by the amount we've read over. Okay, you can use the time as you wish. Thank you. I would like to just before we go back to the issue that you were just discussing. In the 37th affirmative defense which is at the right in the record at A675, Andrix asserted that Ash was equitably stopped from enforcing all of the other patents. Andrix, and the action and the related litigation as they may relate to a map resolve to the fullest things that permitted by the map of the law of key story in this project. And we tried that issue in phase four pursuant to this structure that the district court set forth as to how to proceed. Inequitable conduct is a subset of unclean hands. The court can't jump. The district court can't have jumped to a determination that we did not prove unclean hands without considering inequitable conduct. That is our basic argument as to why Error was committed by the district court in determining that inequitable conduct was moved. What is the status of your counterclaims? So the council says that they're pending. We assume that depending on what happens in this court, we may have to go back and address those counterclaims. Why do we have a final judgment then? Your Honor. Was there a 54 B certification in respect to this part of the case? No, there was not. Is there another problem? She severed the, Your Honor, she severed the antitrust counterclaims, the district court did. But with respect to this aspect of the case in phase four, she found a final judgment. But without determining one aspect of the counterclaim for unenforceability, I'm not making myself clear. The judge determined that we had not, she redrepted our unclean hands argument. But our unclean hands argument is dependent upon one aspect of, it's dependent upon inequitable conduct which was never reached. I don't see how, I think that is the error that we are asserting here. The legal error. So you're saying that there, the case is over unless you reopen it? Correct. This court needs to read, there was error in determining that a final judgment had been reached on unclean hands without determining one aspect of it which is an applicable conduct. The worst conduct that was committed by AstraZeneca was related to its misappropriation of the 280-year-old. How could you bring an appeal if they're outstanding claims? And if they're not outstanding claims, you tell us there are
. That is our basic argument as to why Error was committed by the district court in determining that inequitable conduct was moved. What is the status of your counterclaims? So the council says that they're pending. We assume that depending on what happens in this court, we may have to go back and address those counterclaims. Why do we have a final judgment then? Your Honor. Was there a 54 B certification in respect to this part of the case? No, there was not. Is there another problem? She severed the, Your Honor, she severed the antitrust counterclaims, the district court did. But with respect to this aspect of the case in phase four, she found a final judgment. But without determining one aspect of the counterclaim for unenforceability, I'm not making myself clear. The judge determined that we had not, she redrepted our unclean hands argument. But our unclean hands argument is dependent upon one aspect of, it's dependent upon inequitable conduct which was never reached. I don't see how, I think that is the error that we are asserting here. The legal error. So you're saying that there, the case is over unless you reopen it? Correct. This court needs to read, there was error in determining that a final judgment had been reached on unclean hands without determining one aspect of it which is an applicable conduct. The worst conduct that was committed by AstraZeneca was related to its misappropriation of the 280-year-old. How could you bring an appeal if they're outstanding claims? And if they're not outstanding claims, you tell us there are. There is an outstanding claim to the extent that the district court found to rule on one aspect of our counterclaim. Did you request for ruling? We certainly did. We requested that she determined inequitable conduct. She determined it to be moved. We're talking about the added trust counterclaim. Those are the seven and those, you say that's alive? I think those are alive. Only if we send this back. Send this back. I think that is the firm the case is over. Correct. Thank you. To address the anticipation of our argument. The ruling of the district court. To have an anticipated anticipation, you must necessarily always have present the claimed invention. How does the Korean application disclose temperature for instance? How does it necessarily require the presence of the proper temperature so we know that the process is actually going to be working? The application discloses the ingredients and the process without giving specific parameters for these. So then it may not have, according to the by following that application, I may not perform the process
. There is an outstanding claim to the extent that the district court found to rule on one aspect of our counterclaim. Did you request for ruling? We certainly did. We requested that she determined inequitable conduct. She determined it to be moved. We're talking about the added trust counterclaim. Those are the seven and those, you say that's alive? I think those are alive. Only if we send this back. Send this back. I think that is the firm the case is over. Correct. Thank you. To address the anticipation of our argument. The ruling of the district court. To have an anticipated anticipation, you must necessarily always have present the claimed invention. How does the Korean application disclose temperature for instance? How does it necessarily require the presence of the proper temperature so we know that the process is actually going to be working? The application discloses the ingredients and the process without giving specific parameters for these. So then it may not have, according to the by following that application, I may not perform the process. I may not create an institute layer at all. No, that's not true. The testimony that was credited by the district court was that if a separating layer will form each and every time, if you follow the CKD application, all of the evidence in the record was that it forms every time. There was evidence that there's evidence of Dr. Rose. Well, but you're skipping steps. It seems to me. I have the same question as the judge. If you have, if you follow the CKD application, which you have as a pile of materials in front of you on your lab table, you don't have a process. It's conspicuously absent, at least except for a very brief reference as far as I can tell, is process. It has components. But the question is how do we jump over that? Now, as I understand what the district court said, the district court said, any person of skill in the art has testified to by Loveburn and Bannocker, that it would be able to know inherently that this is what you do with these products in this setting. Now, is that enough? Yes. The question is, is that enough to establish an inherency? It is. I'm sorry. Go ahead
. I may not create an institute layer at all. No, that's not true. The testimony that was credited by the district court was that if a separating layer will form each and every time, if you follow the CKD application, all of the evidence in the record was that it forms every time. There was evidence that there's evidence of Dr. Rose. Well, but you're skipping steps. It seems to me. I have the same question as the judge. If you have, if you follow the CKD application, which you have as a pile of materials in front of you on your lab table, you don't have a process. It's conspicuously absent, at least except for a very brief reference as far as I can tell, is process. It has components. But the question is how do we jump over that? Now, as I understand what the district court said, the district court said, any person of skill in the art has testified to by Loveburn and Bannocker, that it would be able to know inherently that this is what you do with these products in this setting. Now, is that enough? Yes. The question is, is that enough to establish an inherency? It is. I'm sorry. Go ahead. It sounds like more like enablement. Well, not at. But is it good enough for inherency? And if so, what's your best authority for that proposition? It is good enough for inherency. The process conditions are simply ones that any skilled formulator would understand what to do. Yes, but even the Koreans and Astrid didn't seem to know what was going on when they went into this. I mean, you say it was necessarily known by one of skill in the art. They didn't seem to know what was going on when they started this litigation. They were suing them under a three-step process, and the director seems to suggest both parties were shocked to find out they had a two-step. Well, all the CKD application said was there's no, you don't apply an extra step to form the sub-poot. I'm just trying to see how in that setting, you're saying everybody knew to perform it at the right temperature so you'd get the right process. Yet everybody didn't seem to know. Well, all of the evidence in the record shows that it forms. Every time it was tested by Astrid, by the special master in the Korean proceeding, the 70 degree temperature is litigation testimony. There is no evidence in the record to support that. But neither side showed, I think I would agree that it's 42 degrees informed. But nobody showed that it formed at the 70 degrees
. It sounds like more like enablement. Well, not at. But is it good enough for inherency? And if so, what's your best authority for that proposition? It is good enough for inherency. The process conditions are simply ones that any skilled formulator would understand what to do. Yes, but even the Koreans and Astrid didn't seem to know what was going on when they went into this. I mean, you say it was necessarily known by one of skill in the art. They didn't seem to know what was going on when they started this litigation. They were suing them under a three-step process, and the director seems to suggest both parties were shocked to find out they had a two-step. Well, all the CKD application said was there's no, you don't apply an extra step to form the sub-poot. I'm just trying to see how in that setting, you're saying everybody knew to perform it at the right temperature so you'd get the right process. Yet everybody didn't seem to know. Well, all of the evidence in the record shows that it forms. Every time it was tested by Astrid, by the special master in the Korean proceeding, the 70 degree temperature is litigation testimony. There is no evidence in the record to support that. But neither side showed, I think I would agree that it's 42 degrees informed. But nobody showed that it formed at the 70 degrees. And generally, it seems as if the experts didn't disagree on this, that this was, that the temperature was important. There is no magic to the 43 degrees. That is a complete litigation-related- Well, all of this is litigation related. No, but you're telling us that at the time of the year, that we need to assume this fight, all of the evidence statements, opinions of the experts, that it's 70 degrees, something quite different happens. The process parameters are ones that any skilled formulaeer could understand. There was lots of testimony about that. The bread and the truth. You're aside. It had the bread and the proof on the ear. It was by a specialist testimony that it would form every time and by the other people would do record evidence that we put into the record. At what temperature? At what temperature? It formed at different temperatures. What evidence is in the record at what temperature? We have the CKD, excuse me, you just find CQD application, which is at the 70 degrees. In the record at A, 8, 0, 3. I'm going to go to your report. 8, 2, 8. And what temperatures are shown in that application? I don't believe they show a temperature
. And generally, it seems as if the experts didn't disagree on this, that this was, that the temperature was important. There is no magic to the 43 degrees. That is a complete litigation-related- Well, all of this is litigation related. No, but you're telling us that at the time of the year, that we need to assume this fight, all of the evidence statements, opinions of the experts, that it's 70 degrees, something quite different happens. The process parameters are ones that any skilled formulaeer could understand. There was lots of testimony about that. The bread and the truth. You're aside. It had the bread and the proof on the ear. It was by a specialist testimony that it would form every time and by the other people would do record evidence that we put into the record. At what temperature? At what temperature? It formed at different temperatures. What evidence is in the record at what temperature? We have the CKD, excuse me, you just find CQD application, which is at the 70 degrees. In the record at A, 8, 0, 3. I'm going to go to your report. 8, 2, 8. And what temperatures are shown in that application? I don't believe they show a temperature. That's our point. There wasn't actual temperature shown in either of the examples of this. I'm trying to put a little bit of substance on your generalization that the layer forms at all temperatures. And I've asked where is the evidence. If you could give me a minute, I will try to find. Because there were the formations in the record. I think we need to move on. Could I ask just a purely procedural question again? Very quickly. By my count, and I may have undercounted that, I think I may have a few examples. But there's at least three translations of the Korean application in the appendix. You've cited the one of them. And this would be trivial concern, except that they are quite different, frankly. Did the trial judge pick one of them as the most authoritative? I'm thinking of 13, 9, 57, 808, 4, and 9618. And the reason I ask is because one of them has language that seems to me to be sort of pertinent to one of the central questions here. I think the 808 4 refers to an interic coding without applying an endothelial layer, which suggests that maybe the endothelial layer exists. There's no dispute about its existence, but it wasn't separately applied, in other words, rather than without there being an endothelial layer, which is the suggestion in the other translations
. That's our point. There wasn't actual temperature shown in either of the examples of this. I'm trying to put a little bit of substance on your generalization that the layer forms at all temperatures. And I've asked where is the evidence. If you could give me a minute, I will try to find. Because there were the formations in the record. I think we need to move on. Could I ask just a purely procedural question again? Very quickly. By my count, and I may have undercounted that, I think I may have a few examples. But there's at least three translations of the Korean application in the appendix. You've cited the one of them. And this would be trivial concern, except that they are quite different, frankly. Did the trial judge pick one of them as the most authoritative? I'm thinking of 13, 9, 57, 808, 4, and 9618. And the reason I ask is because one of them has language that seems to me to be sort of pertinent to one of the central questions here. I think the 808 4 refers to an interic coding without applying an endothelial layer, which suggests that maybe the endothelial layer exists. There's no dispute about its existence, but it wasn't separately applied, in other words, rather than without there being an endothelial layer, which is the suggestion in the other translations. So did the trial judge pick one of the translations and settle on one? Because I'm not going back to the original. All right, so that's fine. That's what will. Thank you, Mr. Lair. Mr. Taylor, you have a few minutes. Just on the cross. It works on the cross appeal. On this issue of the process, conditions, and the actual testimony with regard to that, Dr. Bannaker, Andrews' experts, testified a trial that for him to determine to know whether an incitoo separating layer form, he needed to know both the ingredients and the process. And that said, appendix 6905. Aschrist's scientist, Dr. Lundberg, who was one of the inventors of the two-way form pattern process. Testified that when he tried to repeat the CKD batch record, he did not obtain an incitoo something using ordinary process conditions. And I'm holding it from a 7383 in the attendance
. So did the trial judge pick one of the translations and settle on one? Because I'm not going back to the original. All right, so that's fine. That's what will. Thank you, Mr. Lair. Mr. Taylor, you have a few minutes. Just on the cross. It works on the cross appeal. On this issue of the process, conditions, and the actual testimony with regard to that, Dr. Bannaker, Andrews' experts, testified a trial that for him to determine to know whether an incitoo separating layer form, he needed to know both the ingredients and the process. And that said, appendix 6905. Aschrist's scientist, Dr. Lundberg, who was one of the inventors of the two-way form pattern process. Testified that when he tried to repeat the CKD batch record, he did not obtain an incitoo something using ordinary process conditions. And I'm holding it from a 7383 in the attendance. He said, quote, I had no success getting that. And that was referring to using the higher temperatures. And he goes on to say, I've finally ended up with a lower-ear inlet temperature of 42 degrees. And also later on in that same line of testimony at a 7385, he testified again that he couldn't use the 70-degree temperature. Dr. Lundberg, the only evidence in the record is that temperature matters. The CKD disclosure doesn't have temperatures. It cannot inherently anticipate the claims in the two-way form pattern. What was the particular testimony at 6905 that you were referencing there? I'm looking at 6904. He says that a person of ordinary skill in the art and formulation sciences would know how to do this formulation. That's correct. They all have a generally interic code. That is no question. Well, then the context of that question is not generally. It's with respect to the process that results in the formation of the interic code in the CKD application. As I understand that
. He said, quote, I had no success getting that. And that was referring to using the higher temperatures. And he goes on to say, I've finally ended up with a lower-ear inlet temperature of 42 degrees. And also later on in that same line of testimony at a 7385, he testified again that he couldn't use the 70-degree temperature. Dr. Lundberg, the only evidence in the record is that temperature matters. The CKD disclosure doesn't have temperatures. It cannot inherently anticipate the claims in the two-way form pattern. What was the particular testimony at 6905 that you were referencing there? I'm looking at 6904. He says that a person of ordinary skill in the art and formulation sciences would know how to do this formulation. That's correct. They all have a generally interic code. That is no question. Well, then the context of that question is not generally. It's with respect to the process that results in the formation of the interic code in the CKD application. As I understand that. What was it that you say where he backs away from that? On 6905? On the next page, 6905. Specifically where? On 6905. On page 5351 in the transcript. Do you have a line? Line 11, I believe I was asking these questions. So is it your testimony to figure out for you to know what the product structure is of a product? All you need to know is the ingredients answer. I need to know the ingredients and the process question. And the process answer, yes. Where does he refer? You said something about 70 degrees. That's not on the screen. This is Dr. Vannecart. Oh, okay. Dr. Lundberg, the astrosciences, specifically referred to the 70 degree. He was, he repeated CKD fast record. We also didn't have detailed process information
. And that testimony is on record pages. A73, A3, and A73, A3, and A7. Okay. Thank you, Mr. Taylor. Thank you, Mr. Dale. The case is taken under submission