Legal Case Summary

Number 14, 1331, Fleming against the S-Court, Mr. Dallard. Good morning, may I please the floor. My name is Mike Dallard, and I represent the appellant Hoyt Fleming. In this case, the jury invalidated five of Mr. Pat Fleming's patent claims. The subject of this appeal is Mr. Fleming's claim that the district court aired both as a matter of law and on the sufficiency of the evidence when upholding the invalidation of those five claims. Mr. Fleming raises three separate grounds for reversal, and I say it like that because if the court were to reverse on any one of those grounds, it does not have to decide the remaining two of Mr. Fleming's appeal. From a high level, the issue is these. First, whether the district court aired in holding that there need not be corroborated prior our evidence of each element of each invalidated patent claim. Second, whether the district court aired in holding the testimony that failed to identify the claim elements, provide a construction for those elements, or read the construed claims on the prior art, suffices to invalidate those claims. And third, whether the district court aired in holding that an invention that was kept secret for three years due to a corporate bankruptcy is exempt from the abandonment suppression requirement of Section 102G. So I'll take each of those issues in order, the first being the corroboration requirement. The perspective of that issue, the district court acknowledged that there was no corroborating evidence for each claim limitation, but it upheld the jury verdict anyway on the basis that not every claim element required corroborated prior evidence. Specifically, the district court ruled as follows and it closed. Fleming argues that the corroboration evidence must corroborate every element of every claim that S-4-6 has been validated. Yet Fleming cites no case so hold it. Fleming's promotion of a rigid standard does not align with the rule of reason, and ignores KSR's holding that obviousness is to be judged by an expansive and flexible standard. Ultimately, the corroboration requirement is intended to determine credibility and such evidence could establish the credibility of the purported inventor without establishing every element of every claim. That is the case here. And that from Mr. Fleming's perspective is the air law since the court's precedent clearly requires corroboration for each claim element. But importantly, if we require corroboration for each claim element, doesn't the inventor testimony then just become surplus? Nobody would need to look at the inventor testimony if there is already other evidence supporting each and every claim element. Going back to the Supreme Court's barbed wire case

. Isn't that true though? If we accept your position that there has to be something besides inventor testimony to support each and every claim element, then that would be enough to support a finding of obviousness. In this case, it is the anticipation of its prior invention under my opinion. If there is evidence besides the testimony on each and every claim element, then the testimony becomes superfluous. So your legal position would then render inventor testimony not useful in any circumstance? I don't think it is not that it is not useful. It is the law as this court and the Supreme Court has held is that inventor testimony alone is not enough to invalidate a claim when the claim is prior invented by that statement. Why would anybody ever offer inventor testimony if you already have evidence on each and every claim element? Well, I don't think they could offer a prior reference to an actual witness. Well, that put troubles me. It seems like the logic of your legal position is that inventor testimony is never relevant and that is certainly not our case law. Correct. Although that is not our position. Our position is that when an inventor comes in and testifies that I made the invention before the inventor did, his testimony must be corroborated because he is an interested witness and the case law is such that if that were the only evidence, then that would be not enough to invalidate the claim at issue because he is an interested witness in the law requires his testimony be corroborated. Now, your point is what if the inventor didn't testify and we just had a prior art reference? That I agree would be enough to invalidate the claim if the claim element is read on that prior art reference because there is no issue about that. What troubles me is the logic of your legal position renders inventor testimony essentially not credible for any purpose and that doesn't seem to be our case law. And I agree it is not. I am not suggesting that it is not credible for any reason. I am suggesting that the law requires that the inventor testimony be corroborated. It can't stand on its own. I am not saying it is not relevant or not worth anything. Why isn't the rule really that what has to happen is when an inventor comes in and testifies about his invention, there has to be a not corroborating testimony to render it credible. Not that there has to be evidence on each and every specific claim but just to show that his testimony about whether he actually did invent the device or not is credible. That has not been the first precedent. What precedent do you think is the strongest on your side? You cite six cases. Which of those cases do you think is the strongest for you in articulating a rule that every limitation in every claim that is under attack has to be corroborated by independent documentary evidence? There was a case just last year, Taurus IP 726F1306 that clearly indicates that each claim element must be corroborated. Can I ask about this? It seems to me there is something to be said for the proposition and maybe if it was agreed that if you think about the elements one by one and ask was their specific corroboration that identified that specific element that maybe there wasn't. But why isn't each element as you describe basically in three categories corroborated by documents showing Mr. Orr was working on radar detectors

. He was interested in GPS. GPS tells you about location. He is interested in about location and therefore about distance. Why does that not tend to corroborate these elements in substance even if there isn't a very specific mapping. Why are you going to integrate a GPS into a radar detector unless you want to tell the radar detector something about where you are in relation to something else in terms of distance presumably to prevent. He is reasonably corroborated in the notion to prevent signals from that distance triggering the alarm. Why doesn't that effectively provide corroboration? I think the documents and evidence that were supplied at the trial for the jury do corroborate that Mr. Orr was working on certain things. What they don't corroborate is that he made the invention. In other words they don't corroborate that he had a radar detector and that he put the GPS in the radar detector. There are documents that say he was working on radar detectors. We don't dispute that. There are documents that say maybe then that the problem or the issue is what exactly corroboration means. It doesn't mean directly demonstrate but rather provide a non-monitbueable source of evidence that tends to suggest. If it needs something softer like that, why don't the documents that show he is working on radar detectors, he is looking at GPS in conjunction with his work on radar detectors. There is GPS that gives you location and therefore distance information. Is there some other theory about what he might have been doing other than trying to build a distance measurement into the radar detection? Absolutely. You can do all kinds of things with a GPS that have nothing to do with determining a distance between two points and comparing it to a stored distance. You can use a GPS in order to lock out a false signal. You can use a GPS for all kinds of things unrelated to the instruments. What things would you use them for if you are looking at the GPS specifically to figure out how to use it with a radar detector? There are radar detectors on the market that don't do that but have a GPS. For example, you might have a dual-purpose GPS radar detector where the GPS tells you where you are, gives you a map, tells you how to get somewhere. That's sort of taping with the GPS. I'm sorry. Just taping them together. Yes

. Well, integrating their functionality but not to do false location lockouts. Let me ask you a question if I could either answer. A question about one specific pair of documents that were in the list of documents that were purported to be corroborating. The documents are two emails that were discussed in the course of testimony. At 73.54 and 73.53 of the Joint Appendix. One is from Greg Orr and the other is a response to Mr. Orr in which relate by context and by testimony to a brainstorming session that was held back in 96. I think it is. One of the comments made in the second email is that could we, this is the discussing Mr. Orr's idea, could we patent the concept of vehicle speeds, not engine speed, muting and vehicle position muting. This is in the context of a discussion of the role of the GPS in the radar detection and referring to muting. Isn't that sufficient to establish that Mr. Orr was thinking about the muting function in connection with location determination in a radar detection system? I think the issue of whether or not false signal alerts in radar detectors was recognized for a long time. A lot of people probably worked on that and thought about ways to try to resolve it. Whether or not any of those people ever put a radar detector together with a GPS and determined the distance between two locations and determined a lockout distance and compared those to an order as one method of rejecting the false alarm was never done in the prior art. In those emails that that level of detail was not discussed. I think it is true that Mr. Orr was working on radar detectors. It is true that he was considering using a GPS unit, but there is no evidence that he combined those two. There is no evidence that he generated a distance between a stored position of a false alarm. Use the GPS and the radar detector to determine a distance between that stored location and where he is at. Use the distance between those to another stored lockout distance to reject the false alarm. Let me ask you one other question, just a factual question that was not clear to me from the record. There were some references to the software that Mr

. Orr had created. This was one in the series of iterations of that software. TST 4600K. I saw that Mr. Cune testified that he got that in the form of something that had been left over on the bankrupt company's disks and may have had to discap. Was that in evidence that software? Yes, it was. What does that software show? It is not I. It was referred to. There was a series of 4500 I, which was introduced. We have it in the appendix. This is 4500K, which was the last iteration. I think Mr. Orr, if I understand it correctly. Yes. I do. Is it in the record? No, it was not. I believe that software like Mr. Orr testified that he created, but he lost and was not able to. Before you run completely out of time, can I just ask you one other question. What's the priority date for the Fleming invention? Is it the date of the filing in 99 or is it earlier than that? Yes, it is. Well, for purposes of the case, it is the filing date. His reduction to rather his conception date was by his testimony as I understand it in 98. That's correct. May 20th, 98, something like that. That sounds familiar. In the case that we didn't rely on an earlier conception and diligence to get his invention date earlier because we didn't need to

. I'm a little confused by that. Are you saying that you're waving any arguments that may 98 day? Let me say, I'm going to lay my card to the table. I'm not going to try to trap you here. That seems to me very important for your abandonment issue. That May 98 day. There was testimony in trial that that's when Mr. Fleming made his invention. He conceived it and then he worked from that day. It just to find the fact that there was any sufficient factual finding on that that you were lied on the 99 day. Well, because, let me just fill out card on the table. Here's on the abandonment issue. It seems like you may have some argument there. But not to me the way you've actually presented it. It does seem to me that the 12 or 13 months that Mr. Orr wasn't working on that might be termed an abandonment. But then he restarted working on that and sometime in July through September of 98. So that seems to me that that would get rid of an abandonment problem if your priority date is 99 but not if your priority date is the May 98 date. Does that make any sense to you? It does. The evidence was introduced that Mr. Fleming made the conception of 98 and that he worked on it and filed an application in 99. No testimony that after the conception he in some sense reduced it to practice before the application date. No, not. It would be a constructive reduction to practice correct. That was the evidence of trial. It never, the issue never came up as to whether or not that particular date mattered because S. Court was claiming a trial that it reduced to practice in 96

. So you know our argument is that there's no evidence that he reduced to practice in 96 and after 96 when they went bankrupt for three years he didn't do anything. And so where Mr. Fleming's invention came in doesn't seem to matter for purposes of suppression and concealment because he did nothing. He kept the invention secret for three years did nothing. Why? Because the company was bankrupt. The thing is if we disagree with you about that and I think there's differing views and the record about that. The May 98 date seems important because it does seem at least undebatable that he, well I wouldn't say undebatable but there's significant evidence that at least for about a 13 month period he didn't do anything. But that he did restart working on it after he came back to work for S. Court. And so it seems to me that he could have abandoned it and then restarted it and he may not get the priority date all the way back. But he could get that restart date as a priority date and that seems to be smack in the middle of the May 98 date when you're talking about conception and the 99 date when you filed a patent. Yeah, I don't, I don't, I don't, I'm on the abandonment suppression. I don't think the issue is, is Mr. Orr entitled to an invention date when he started to rework on his, on his, on his invention. Let me, let me just ask this plainly. If we think that his really early date is not supportable because he did abandon it but he restarted working on it sometime between July and September of 98 and we're going to give him that date. What does that do to your case? I mean, because if we assume that that's his invention date sometime in 98, if we take the patent date, your patent date as the effective date of your patent, then it's still a prior art. Well, I don't think so, Your Honor, because I mean, there's no evidence whatsoever in the record of even if you decide that he started reworking on the invention and sometime in 90, 80, 90, 80, 80, 80. There's no evidence in the record of any kind of diligence whatsoever that he diligently worked on it between that date and when he filed a patent. But you didn't, you didn't litigate a question to do about that would fall under the particular diligence rules about conception, later reduction. That was not, that was not, that there was evidence about that but that was not an issue that was ever decided by the jury. So you're not relying on that main 98 date. You're just relying on the, on the April 99 date. Well, no, I mean, you know, if the issue is important, of course, we're relying on the 98 date. But that, but that was not an issue that was supposed to be jury. I'll say that

. There was evidence at the trial that that was the case. There was evidence that Mr. Foaming and conceived it in May of 98. There was evidence that he worked on it continuously until he filed a patent application. The evidence was that Mr. Orr, what are we, I'm sorry, I'm taking you away over your time. But what are we supposed to do with it if we don't agree with your view of abandonment and we don't agree with Escort's view of abandonment. And it seems to me that there's not any evidence or factual findings that we can look at even though we may have denobo review on the issue of law on this question. Well, I think, I think you have to decide it based on the evidence that was advanced, you know, at trial and is part of the record in this case. And I believe that evidence shows that Mr. Orr abandoned it for at least three years. Okay. Let me if I could ask just one more question. I'm sorry. I'm struggling to understand what the effect of the bankruptcy of the company is. I mean, you say that there's a gap of let's say a year. There's a period after the bankruptcy in which Mr. Orr continued as I understand it from the testimony to work with Mr. Cune to try to give him information about the project he was working on including this project. But clearly the bankruptcy was a major disruption. Mr. Cune had to come in and sort out what was left of Cincinnati microwave. Is it your view that the fact of the bankruptcy should not matter to the lack of activity during that year long period? It's a flooding view that that is not an excuse for abandonment suppression. Suppose instead of a bankruptcy, let's suppose that there was a lab in which somebody was working and they'd gone very far down the road indeed they even had early production to practice of the invention and they were hitting towards applying for a patent and the lab burned down. And reassembling all the materials, getting the experiments going again and so forth took a year. That surely wouldn't count as a abandonment suppression of concealment

. It may in fact, the event are always that the option of the building. You think that that would be a abandonment? If the inventor is saying, I want to get that lab built back as fast as I can. I want to get back on our feet where we've lost a year because of the fire. But that would be a abandonment. I'm a strange concept of abandonment. Agreed. And I don't think it would necessarily be considered abandonment in that context but certainly suppression. The policy of the US Pat Maw's encourages inventors to come forward and disclose their inventions to the public. And whether or not their factories burned down or not agreed if he had every intent to continue to develop and he wants to get that factory rebuild as fast as he can. In his mind and maybe everyone's reasonable mind that that particular circumstance is not abandonment. But it seems to be a suppression at least from the eyes of the public which Pat Maw's encouraged inventors to disclose their inventions. I mean surely the standard of abandonment suppression concealment requires something more than simply not acting as soon as you possibly can. Indeed something substantially more than what we have held to constitute insufficient diligence. The district court held and I'm not sure that I disagree that if an inventor is refining his invention and if the factory burnt down and he got a built as soon as he could and he continued to work on his invention in order to get it in a position where he could make a product or eventually filed a patent application. I think that may be fine. Those aren't the circumstances here. The basic circumstances if I understand it right is Cincinnati microwave goes bankrupt. He works with the I guess the committee to look for purchasers of the asset. The assets include that is the assets of CMI not a personally include this intellectual property. They find a buyer that buyer now needs to set some priorities about getting some revenue. First works on getting a particular product out and then in pretty short order basically within a year brings Mr. Orbach not as an employee but as a consultant to now refocus on this project. Is that the basic scenario here? Well you have some of the facts right is the one one fact I think that may be critical here is that the asset buying company which became escorted was in the process of trying to collect the assets and sort them out figure out what it wanted to do. In the meantime Mr. Orbach went to go work on cell phones. Right but the asset didn't belong to him

. It did not belong to him but so he couldn't he the shift in the responsibility and opportunity together for doing something with this intellectual property. Move from CMI to ask what he couldn't all by himself go and do this agreed. So Mr. Orbach was off working on cell phones and it's that dormant for some other companies. Yes yes yes. And in the invention or the technology sat dormant in escorts files for three years. No no no. No. The only dormant C if I understand the record is the period after Mr. Orbach left. I mean you I know you say well he should have filed a patent application as soon as he reduced the practice but that he his testimonies he continued working on this project throughout the period between 96 and 97 February 97 on the bankruptcy occurred. That's not the evidence. The evidence is he says he reduced it to practice in 96 and then he wanted in order to refine his invention. He needed a new computer. He needed some help with it but the company at that time was in financial dire straits. It had not declared bankruptcy yet. He asked for a computer for the new company so he could work on his invention. They said no. We don't have the money for you to get a new computer. He lost his source code. Things went down and then some number of months later of during which he did nothing on the invention they declared bankruptcy. So it was in 96 that he stopped. The bankruptcy occurred in 97. The new company didn't get going again until 99. The first product the new company came out what didn't have anything to do with GPS. The first priority was just to get a product on the market which had nothing to do with GPS

. It wasn't until later that they told OR, hey, you know that GPS stuff you were working on. Let's see if we can't get that going again. Okay, well maybe we should hear from the other side. We will restore your rebuttal time. Thank you very much. And I think you have about 12 extra minutes. I'm Greg Aaron and I represent Ascord. We have both response to the appeal. We have a cross appeal on the invalid reissue topic which I would like to address as part of my opening remarks. But I would like to respond to some of the comments that were made in the questions of Mr. Dallar particularly about the collaboration requirement. In particular, the collaboration is one of those down to the matter of credibility of the witness. In this case Mr. OR testified for many hours on the stand. Not only did it jury here to testify but the judge who later was ruling on the JNLL also saw this testimony. Maybe he was an extremely effective liar. I don't know if a case where we have said, I suppose there is a smidgen of corroboration of one truly tiny piece that we can say that that's enough because the jury thought that for eight hours he was personally very, very credible. Or does corroboration have to extend to some pretty substantial amount of the scope of the substance of the testimony. That's an excellent question. And I think in this case it's more along the lines of the ladder scenario in any event. But the rule of reason, which is the applicable standard in the corroboration, the rule of reason analysis, essentially is kind of a sliding scale if you will. If a witness is not coming across as credible or is somehow a very tough, have we said that? I know that we said that corroboration is a rule of reason but have we spoken about the amount of corroboration that's required being a function of how otherwise personally credible and demeanor and so on. I'm not aware that the court has specifically done that sort of a balance and if you have or if the court has not not aware of that, I apologize. But I'm not aware of some particular formula of that kind, the less credible, the more corroboration or something like that. But I think the rule of reason was just in its bite nature because it gets at the credibility of the witness, a jury who found by clearing convincing evidence that Mr. Or did what he testified to. So that's a high threshold. The jury was instructed properly on the law of anticipation and obviousness. There's no objection to those instructions. There was no objection to the corroboration requirement and the prior invention instructions. So the jury had the law and they had the witnesses and it wasn't just Mr. Or he was corroborated through certain documentary evidence. But to get back to your exact question, I do think that and would tend to agree that you a party would need to put in more circumstantial corroborating evidence to bolster a witness who's maybe not as particularly credible. I would agree with that. But I think that's exactly what happened here. I mean, let's be mindful of what the actual claims are that were invalidated. Claim 18 and claim 45 of the 038 patent. I mean, we're talking about this complicated technology, the GPS and radar detector and all kinds of algorithms and source code and all these other things. But these claims really boil down to either three elements in claim 18 or two elements in claim 45. And one's a micro processor. So nobody nobody here in this case, Mr. Orr or Mr. Flaming invented micro processors. So it's just about that circuit coupled to the micro processor for detecting incoming police radar signals. So that's now just a radar detector so far. And then the third element is a GPS receiver that's coupled to that micro processor and is operate operable to provide the micro processor with data that indicates the position. So, element C is a GPS unit. So essentially claim 18 is just taking on GPS and having its data fed to a radar detector through a circuit so that you know where this radar detector is when it receives radar signal. So, and Mr. Orr testified to that study did. And in fact, the email that one of y'all asked about, which is 73 54, talks about utilizing a GPS and a radar detector. And Mr

. So that's a high threshold. The jury was instructed properly on the law of anticipation and obviousness. There's no objection to those instructions. There was no objection to the corroboration requirement and the prior invention instructions. So the jury had the law and they had the witnesses and it wasn't just Mr. Or he was corroborated through certain documentary evidence. But to get back to your exact question, I do think that and would tend to agree that you a party would need to put in more circumstantial corroborating evidence to bolster a witness who's maybe not as particularly credible. I would agree with that. But I think that's exactly what happened here. I mean, let's be mindful of what the actual claims are that were invalidated. Claim 18 and claim 45 of the 038 patent. I mean, we're talking about this complicated technology, the GPS and radar detector and all kinds of algorithms and source code and all these other things. But these claims really boil down to either three elements in claim 18 or two elements in claim 45. And one's a micro processor. So nobody nobody here in this case, Mr. Orr or Mr. Flaming invented micro processors. So it's just about that circuit coupled to the micro processor for detecting incoming police radar signals. So that's now just a radar detector so far. And then the third element is a GPS receiver that's coupled to that micro processor and is operate operable to provide the micro processor with data that indicates the position. So, element C is a GPS unit. So essentially claim 18 is just taking on GPS and having its data fed to a radar detector through a circuit so that you know where this radar detector is when it receives radar signal. So, and Mr. Orr testified to that study did. And in fact, the email that one of y'all asked about, which is 73 54, talks about utilizing a GPS and a radar detector. And Mr. Other documentary evidence shows that indeed Mr. Orr drove around in his car and the data points even show his home address was very credible and it was viable credible evidence. And he drove around that he was noting his location through a GPS and he testified that that was connected to a laptop, which is certainly a circuit and a micro processor. And he works for a radar detector company and he says he has a radar detector associated with it. And the evidence shows, with CMI doing anything other than radar detectors or was that the full scope of its distance? They were predominantly a radar detector company. They may have had some other products but they were predominantly one of the early developers of the path forwarding that score of radar detectors back in the 80s or early 90s when they became fairly commonplace until they got outlawed in places like Virginia and etc. So in any event, the corroboration issue does not turn on whether every element of a claim is corroborated by separate testimony. I think the court asked Mr. Dallar about that. The cases he cited that Torris case certainly does not say that every element of a claim needs to be corroborated separate in apart from what the event is telling me. Because as Judge Hughes pointed out in his question, there will be the point of having the inventors testimony at all other than do perhaps authenticate the documents if they were his own. So it might also be to connect a number of things that centralize the invention in the way necessary for 102G. But it might truly just be authentication and narrative in not essentially the addition of substance. I agree. I'm not aware that the precedent of this court goes to that. I'm just not aware that that's the issue. Do you think the Lazar case is the strongest case for you on the rule of reason not every limitation need be corroborated principle that you advocate? I think so. I mean, it's kind of our lead cited case in response to the one that Mr. Dallar cited. I believe this point is not aware of something that I would write. Could I ask you just factually the same question I asked your opposing counsel. What do we know what happened to the TST 4600K? If the software the TST 4600K I believe is the version of software that was not in evidence because it was not it didn't exist. So it existed at some point I take it. It's just really lost is that correct? So that was the final that was what Mr. Orr was using at the end of his project as of the time of the bankruptcy. Correct

. Other documentary evidence shows that indeed Mr. Orr drove around in his car and the data points even show his home address was very credible and it was viable credible evidence. And he drove around that he was noting his location through a GPS and he testified that that was connected to a laptop, which is certainly a circuit and a micro processor. And he works for a radar detector company and he says he has a radar detector associated with it. And the evidence shows, with CMI doing anything other than radar detectors or was that the full scope of its distance? They were predominantly a radar detector company. They may have had some other products but they were predominantly one of the early developers of the path forwarding that score of radar detectors back in the 80s or early 90s when they became fairly commonplace until they got outlawed in places like Virginia and etc. So in any event, the corroboration issue does not turn on whether every element of a claim is corroborated by separate testimony. I think the court asked Mr. Dallar about that. The cases he cited that Torris case certainly does not say that every element of a claim needs to be corroborated separate in apart from what the event is telling me. Because as Judge Hughes pointed out in his question, there will be the point of having the inventors testimony at all other than do perhaps authenticate the documents if they were his own. So it might also be to connect a number of things that centralize the invention in the way necessary for 102G. But it might truly just be authentication and narrative in not essentially the addition of substance. I agree. I'm not aware that the precedent of this court goes to that. I'm just not aware that that's the issue. Do you think the Lazar case is the strongest case for you on the rule of reason not every limitation need be corroborated principle that you advocate? I think so. I mean, it's kind of our lead cited case in response to the one that Mr. Dallar cited. I believe this point is not aware of something that I would write. Could I ask you just factually the same question I asked your opposing counsel. What do we know what happened to the TST 4600K? If the software the TST 4600K I believe is the version of software that was not in evidence because it was not it didn't exist. So it existed at some point I take it. It's just really lost is that correct? So that was the final that was what Mr. Orr was using at the end of his project as of the time of the bankruptcy. Correct. So just to be very specific about this Mr. Orr and certainly in 1996 because you can tell the company ultimately in 1997 did go through the bankruptcy times were tight. You don't just also hit a brick wall and you go bankrupt. Maybe you do but generally there's a downslide so he actually borrowed a computer and he tested it. He borrowed a computer for somebody in a different department and he used that computer and this is during late 1996 in what? In 1996. I believe it led up to the reduction to practice in April may of 96 because this is the software that has the you know you hit the space bar and it locks out. That's the missing portion of the code that's the one section that is not in the record. It was testified to but having the actual code didn't occur at trial because he returns the laptop and the code was on that laptop and he fast as Mr. or $1.00 point out if he could get a new laptop the company continued to slide he couldn't get a new laptop and then he's at the time of trial we couldn't get the code back now. I will say that leading up to trial he rewrote that code to use as a 10 example but the court excluded that because it wasn't the actual code so it was a matter of I think 46 lines of code or something to that to that extent. But truly yes it was not in evidence. If I might address the topic of Mr. Fleming and his May of 98 date there was testimony about the issue of May of 1998 and his invention disclosure. So it is in the actual record I'm not sure it's in the appendix material. Okay, okay great. But it certainly wasn't briefed at this court but I think if the record is reviewed it will show that because I frankly asked the questions myself with Mr. Fleming. Show me where in this invention disclosure document from 1998 you have these things that were submit the claims. Now there's where the claims that are at issue supported or do they find support in your invention disclosure if you're trying to go all the way back to there. Couldn't do it and I think this court wouldn't be able to do it if it looks and does that same analysis. So there was no reliance on the May of 1998 date by Mr. Fleming at trial along the lines of the questions that you all asked. It just didn't play out that way. The jury instruction on prior invention does talk about both inventors to talk about them equally that each one must demonstrate if and when he conceived and or reduced the practice. And was there some diligent period so that that's in there and it wasn't just one sided jury instruction slanted toward Mr

. So just to be very specific about this Mr. Orr and certainly in 1996 because you can tell the company ultimately in 1997 did go through the bankruptcy times were tight. You don't just also hit a brick wall and you go bankrupt. Maybe you do but generally there's a downslide so he actually borrowed a computer and he tested it. He borrowed a computer for somebody in a different department and he used that computer and this is during late 1996 in what? In 1996. I believe it led up to the reduction to practice in April may of 96 because this is the software that has the you know you hit the space bar and it locks out. That's the missing portion of the code that's the one section that is not in the record. It was testified to but having the actual code didn't occur at trial because he returns the laptop and the code was on that laptop and he fast as Mr. or $1.00 point out if he could get a new laptop the company continued to slide he couldn't get a new laptop and then he's at the time of trial we couldn't get the code back now. I will say that leading up to trial he rewrote that code to use as a 10 example but the court excluded that because it wasn't the actual code so it was a matter of I think 46 lines of code or something to that to that extent. But truly yes it was not in evidence. If I might address the topic of Mr. Fleming and his May of 98 date there was testimony about the issue of May of 1998 and his invention disclosure. So it is in the actual record I'm not sure it's in the appendix material. Okay, okay great. But it certainly wasn't briefed at this court but I think if the record is reviewed it will show that because I frankly asked the questions myself with Mr. Fleming. Show me where in this invention disclosure document from 1998 you have these things that were submit the claims. Now there's where the claims that are at issue supported or do they find support in your invention disclosure if you're trying to go all the way back to there. Couldn't do it and I think this court wouldn't be able to do it if it looks and does that same analysis. So there was no reliance on the May of 1998 date by Mr. Fleming at trial along the lines of the questions that you all asked. It just didn't play out that way. The jury instruction on prior invention does talk about both inventors to talk about them equally that each one must demonstrate if and when he conceived and or reduced the practice. And was there some diligent period so that that's in there and it wasn't just one sided jury instruction slanted toward Mr. Orr having to show that it was also put in that Mr. Fleming would have to make that same showing but there was never there was not a specific jury verdict in a regulatory asking the jury to find whether Mr. Fleming had demonstrated some conception in May and reductions. So it was a very important decision to practice through the filing of this patent application in to the April of the following year. But it was subsumed I believe in the in the jury in the regulatory that asked them whether Mr. Orr abandoned a suppressor concealed because that was necessary. I think wrapped up in the jury finding that he did not do that or if he did along the lines of what your honor asked Mr. Dauer that effort that potential abandonment was resurrected in June or July of 1998 and then he proceeded to file a patent application. So I believe that September of 1999 was that the application was on. Mr. Orr was filed in June of 1999. Oh June of that. Mr. Fleming was in April of that same time. So it was the two month gap right. It was almost exactly a two month gap. So I don't believe that that underlying issue you all asked about is wrapped up and subsumed in what the jury actually found. But I can't point to a factual finding by the jury on that specific issue. And when they moved for JMO well did they make an argument based on a priority date of May of 1998 for Mr. Fleming? No. I don't recall what you said about my time but may I turn to the crossfield? I would like to address it because I think it is an important issue for this court. This court in fact this exact panel decided in redens more about five months ago. And this is an issue that is reviewed to know about the issue of whether the patent claims in the two reissue patents ensued are valid and valid reissues. And although the briefing may lead you to believe that there's a dispute about what the standard of review is. I don't believe there's actually a dispute because the question of whether a reissue is valid or invalid is a question of law and it is reviewed to know about this court. There isn't actually a dispute I don't believe or a challenge about any of the underlying facts

. Orr having to show that it was also put in that Mr. Fleming would have to make that same showing but there was never there was not a specific jury verdict in a regulatory asking the jury to find whether Mr. Fleming had demonstrated some conception in May and reductions. So it was a very important decision to practice through the filing of this patent application in to the April of the following year. But it was subsumed I believe in the in the jury in the regulatory that asked them whether Mr. Orr abandoned a suppressor concealed because that was necessary. I think wrapped up in the jury finding that he did not do that or if he did along the lines of what your honor asked Mr. Dauer that effort that potential abandonment was resurrected in June or July of 1998 and then he proceeded to file a patent application. So I believe that September of 1999 was that the application was on. Mr. Orr was filed in June of 1999. Oh June of that. Mr. Fleming was in April of that same time. So it was the two month gap right. It was almost exactly a two month gap. So I don't believe that that underlying issue you all asked about is wrapped up and subsumed in what the jury actually found. But I can't point to a factual finding by the jury on that specific issue. And when they moved for JMO well did they make an argument based on a priority date of May of 1998 for Mr. Fleming? No. I don't recall what you said about my time but may I turn to the crossfield? I would like to address it because I think it is an important issue for this court. This court in fact this exact panel decided in redens more about five months ago. And this is an issue that is reviewed to know about the issue of whether the patent claims in the two reissue patents ensued are valid and valid reissues. And although the briefing may lead you to believe that there's a dispute about what the standard of review is. I don't believe there's actually a dispute because the question of whether a reissue is valid or invalid is a question of law and it is reviewed to know about this court. There isn't actually a dispute I don't believe or a challenge about any of the underlying facts. I think it's very clear what happened. Mr. Fleming testified that he wrote his claims in his fat application like a program. He said that at least once several times perhaps and it's in the breeze. I'm having a little trouble understanding what the significance of that is. I mean for purposes of error something happens in the market which is I think not uncommon and as a patentee you realize it suddenly strikes you. That's my invention and then you go back to your patent and you say oh my goodness I didn't actually claim it. And if you're within two years you get to go back and in your declarations say I was mistaken in my understanding of what my claims covered or my claim or something like that. What is this any different from that in a way that I guess full stop why is that not standard garden variety error. Well first of all is certainly commonplace for patent applicants to amend claims file continuation applications. And I'm talking about original prosecution now to survey the market and adapt to mock by their claims. In fact the King's down case. Brad have we have we spoken one way or the other about with exactly what King's down said in the continuation or amendment context. Have we spoken about that in the reissue context not to be a fact. So to try to address this fight some form of analogy to other scenarios and some of the principles that are put forth in the other reissue cases that find either not invalid or invalid reissue. But I believe it was a fundamental mistake by the district court to actually rely on King's down for this proposition that it's okay for a reissue applicant to file for claims to cover commercial products. King's down has nothing to do with a reissue path. First of all it's a seminal inequitable kind of that case but in any event the patents ensued were regular patents as opposed to reissue patents. So there's a distinction if you're standing there as the applicant for the patent office and you will file a continuation in a regular patent application and you want to modify your claims to cover commercial products. You don't have to take a position that how I made a mistake I made an error you don't have to do anything like that. The reissue statute as a panacea or a corrective measure excuse me for patents is much more limited in scope. If everybody could walk into the patent office. But it still covers situations where you drafted your claims too narrowly or too broadly doesn't it? It does but the so if he drafted his claims too narrowly and when he looks back a year and a half later and and and decide my specification supports a much broader claim my invention is a much broader claim. Why isn't that precisely the situation where he can go back and see a reissue patent with the broader claims? I believe your honor that the Hula Packard case makes it clear and in fact the statute itself talks about there has to be an error and the error has to be connected to either the inoperativeness or the invalidity of claims either to narrow or too broad those are two distinct concepts. You don't you don't satisfy section 251 with one thing. What does two narrow mean if it doesn't mean to narrow to be effective with respect to some goods that are out there on the market? It's a patent isn't invalid for being too narrow

. I think it's very clear what happened. Mr. Fleming testified that he wrote his claims in his fat application like a program. He said that at least once several times perhaps and it's in the breeze. I'm having a little trouble understanding what the significance of that is. I mean for purposes of error something happens in the market which is I think not uncommon and as a patentee you realize it suddenly strikes you. That's my invention and then you go back to your patent and you say oh my goodness I didn't actually claim it. And if you're within two years you get to go back and in your declarations say I was mistaken in my understanding of what my claims covered or my claim or something like that. What is this any different from that in a way that I guess full stop why is that not standard garden variety error. Well first of all is certainly commonplace for patent applicants to amend claims file continuation applications. And I'm talking about original prosecution now to survey the market and adapt to mock by their claims. In fact the King's down case. Brad have we have we spoken one way or the other about with exactly what King's down said in the continuation or amendment context. Have we spoken about that in the reissue context not to be a fact. So to try to address this fight some form of analogy to other scenarios and some of the principles that are put forth in the other reissue cases that find either not invalid or invalid reissue. But I believe it was a fundamental mistake by the district court to actually rely on King's down for this proposition that it's okay for a reissue applicant to file for claims to cover commercial products. King's down has nothing to do with a reissue path. First of all it's a seminal inequitable kind of that case but in any event the patents ensued were regular patents as opposed to reissue patents. So there's a distinction if you're standing there as the applicant for the patent office and you will file a continuation in a regular patent application and you want to modify your claims to cover commercial products. You don't have to take a position that how I made a mistake I made an error you don't have to do anything like that. The reissue statute as a panacea or a corrective measure excuse me for patents is much more limited in scope. If everybody could walk into the patent office. But it still covers situations where you drafted your claims too narrowly or too broadly doesn't it? It does but the so if he drafted his claims too narrowly and when he looks back a year and a half later and and and decide my specification supports a much broader claim my invention is a much broader claim. Why isn't that precisely the situation where he can go back and see a reissue patent with the broader claims? I believe your honor that the Hula Packard case makes it clear and in fact the statute itself talks about there has to be an error and the error has to be connected to either the inoperativeness or the invalidity of claims either to narrow or too broad those are two distinct concepts. You don't you don't satisfy section 251 with one thing. What does two narrow mean if it doesn't mean to narrow to be effective with respect to some goods that are out there on the market? It's a patent isn't invalid for being too narrow. So what what does two narrow mean if it doesn't mean a case such as this? Well it certainly could mean that it's too narrow in the sense that you put in limitations that you what say didn't need to put in because of the scope of the prior art because there's a possibility that somebody could infringe that. But to have the difference. But the precipitating factor is seeing the product and thinking to yourself oh I wrote these claims as a program what is the error that established here? The error is and here this is also a bit of a unique situation relative to any of the reissue cases because Mr. Fleming is both the inventor and the patent attorney. So this is not like you know in Ray Wiler where G the patent attorney didn't understand the scope of the invention and G the inventor didn't understand claiming practice and so there was some miscommunication which was the error or mistake that was made. Why does that really matter I mean are you suggesting we should hold and put a different standard under the statutes and we would hold other people? No but what I think you should do is hold them to the same standard. In Ray Wiler did not condone an argument that G I'm the inventor I don't understand claiming practice or G I'm a patent attorney I didn't understand the scope of the invention. Those are the kind of cases that actually find no error for invalid reissue or no error for reissue purposes. So I think Mr. Fleming should be held to that exact standard and if he is I don't know the facts that case but is your argument that if an inventor discovers within the two year period that he'd claim less than he could have that that's not an error? Well there has to be something in addition to that and I think that's what the Hula Packard case says. The Hula Packard case says that the addition does or have to be. Well I've just cited to the HP case and Ronner said that there has to be for statutes totally required error has two parts. Error in the patent IE it's either too broader to narrow and then error in the conduct so sure I find out learned that my claim to too broader to narrow I still have to satisfy the second prong under the HP analysis that there was some error in my conduct and all we have here is. I think that you fail to apprehend the breadth of your invention and error in your conduct. Well that would be one thing but here that's not what happened he testified that he made a conscious decision he's a penetrating so he mistakenly perhaps put on his I'm a programmer hat and wrote his claims like a program or what? So he made a case of the key word isn't it? Permit mistakenly the word you used seems to me that's the answer. Well I used the word mistakenly but was it really it was a conscious choice I mean he's a licensed pan attorney and he obviously shows how he wrote the one unconscious choice to avoid prior error or anything like that was it? No no the claims were not written in a conscious way to avoid prior error originally they were not they were as he testified written as a program or would write them. Well that seems to suggest that any time somebody chooses to write something that that's a conscious choice and if that's if that's what you're saying then I don't see how. So claiming less than what your invention has whatever constitution error under your analysis of course people when they write them are making a conscious choice about the language they use but they could still miss the upper hand what their invention was and not intend to limit it that way. I understand any indication that he actually intended to limit his actual invention to his claim language I mean it seems that this as a programmer stuff doesn't do a whole lot. Well I guess the additional fact maybe that he testified that at the time that he filed his original patent claims or the claims that issued at the underlying pound he did not intend to claim that which he claimed later in the reissue I mean he specifically said that he didn't intend to claim it that way or claim those things now it's not a recapture problem like some of the other reissue cases because they weren't presented and removed and I realize I'm really going late here. I wonder you reserve guess what we will now call two minutes for repotals. Thank you all very much. Thank you I'm going to spend 60 seconds on the corroboration issue. I think what you heard today and you'll see from the brief there's one document that Mr. Orren Escort could have produced at the trial that would have proven that he made Mr. Funding's invention that was that TST 4600K to Christ and mentioned

. So what what does two narrow mean if it doesn't mean a case such as this? Well it certainly could mean that it's too narrow in the sense that you put in limitations that you what say didn't need to put in because of the scope of the prior art because there's a possibility that somebody could infringe that. But to have the difference. But the precipitating factor is seeing the product and thinking to yourself oh I wrote these claims as a program what is the error that established here? The error is and here this is also a bit of a unique situation relative to any of the reissue cases because Mr. Fleming is both the inventor and the patent attorney. So this is not like you know in Ray Wiler where G the patent attorney didn't understand the scope of the invention and G the inventor didn't understand claiming practice and so there was some miscommunication which was the error or mistake that was made. Why does that really matter I mean are you suggesting we should hold and put a different standard under the statutes and we would hold other people? No but what I think you should do is hold them to the same standard. In Ray Wiler did not condone an argument that G I'm the inventor I don't understand claiming practice or G I'm a patent attorney I didn't understand the scope of the invention. Those are the kind of cases that actually find no error for invalid reissue or no error for reissue purposes. So I think Mr. Fleming should be held to that exact standard and if he is I don't know the facts that case but is your argument that if an inventor discovers within the two year period that he'd claim less than he could have that that's not an error? Well there has to be something in addition to that and I think that's what the Hula Packard case says. The Hula Packard case says that the addition does or have to be. Well I've just cited to the HP case and Ronner said that there has to be for statutes totally required error has two parts. Error in the patent IE it's either too broader to narrow and then error in the conduct so sure I find out learned that my claim to too broader to narrow I still have to satisfy the second prong under the HP analysis that there was some error in my conduct and all we have here is. I think that you fail to apprehend the breadth of your invention and error in your conduct. Well that would be one thing but here that's not what happened he testified that he made a conscious decision he's a penetrating so he mistakenly perhaps put on his I'm a programmer hat and wrote his claims like a program or what? So he made a case of the key word isn't it? Permit mistakenly the word you used seems to me that's the answer. Well I used the word mistakenly but was it really it was a conscious choice I mean he's a licensed pan attorney and he obviously shows how he wrote the one unconscious choice to avoid prior error or anything like that was it? No no the claims were not written in a conscious way to avoid prior error originally they were not they were as he testified written as a program or would write them. Well that seems to suggest that any time somebody chooses to write something that that's a conscious choice and if that's if that's what you're saying then I don't see how. So claiming less than what your invention has whatever constitution error under your analysis of course people when they write them are making a conscious choice about the language they use but they could still miss the upper hand what their invention was and not intend to limit it that way. I understand any indication that he actually intended to limit his actual invention to his claim language I mean it seems that this as a programmer stuff doesn't do a whole lot. Well I guess the additional fact maybe that he testified that at the time that he filed his original patent claims or the claims that issued at the underlying pound he did not intend to claim that which he claimed later in the reissue I mean he specifically said that he didn't intend to claim it that way or claim those things now it's not a recapture problem like some of the other reissue cases because they weren't presented and removed and I realize I'm really going late here. I wonder you reserve guess what we will now call two minutes for repotals. Thank you all very much. Thank you I'm going to spend 60 seconds on the corroboration issue. I think what you heard today and you'll see from the brief there's one document that Mr. Orren Escort could have produced at the trial that would have proven that he made Mr. Funding's invention that was that TST 4600K to Christ and mentioned. That document is missing Mr. Orren says he had it but he said now it turns out that he supposedly lost it so all and in all that we're left with are various scraps of paper and other things that we specifically asked Mr. Orren and Escort expert of trial do these additional documents outside of the software the TST software show anything any of these claim elements that Mr. Orren supposedly invented the testimony was not a big deal. So the one document that we corroborated testimony is gone so all we're left with is Mr. Orren's oral testimony yes in fact I had the software and I did it and I think this court precedent is clear that that is not enough to establish a prior invention under one of two G. Onto the reissue issue. The first thing I think we should dress is whether or not this is an issue that we should be considering at all the first ten claims and Mr. Flaming's first reissue that the result of their success on this argument would be to invalidate a whole lot of claims that currently stand. And that's right why doesn't that end the question of whether there's jurisdiction to consider their content. But because in the Toronto case the court held that whether or not there's error on some issue like that and it wasn't a reissue claim but whether or not there is an error like that. If the liability judgment can be affirmed on some other ground then that error is harmless and need not be addressed on appeal right so so in the first ten claims to a regional which aren't reissue claims. The hew up accurate says that even if you find these other reissue claims claims 11 through 30 invalid because there wasn't an error in this case that qualifies them to be reissued. Those ten claims will stand no matter what you're finding is on the other claims. Within those ten claims the jury found that every one of the accused products infringed and I'm going to use claim seven because it's just the easiest there's no contention about that in French claim seven. So all products in French one claim there wasn't any testimony or evidence or anything else about whether or not the damages should be different depending on which claim was infringed. They would come away with a not with a stronger judgment of claim seven was invalidated in particular they wouldn't have to worry about doing something continuing to practice it or doing other things that might come within it that weren't an issue here. Traditionally a invalid judgment is and has been I think I consistently treated and stronger judgment than a non infringement judgment. Well in this case there's no chance of claim seven being invalidated claim seven's an original claim that's not subject to their reissue appeal. So claim seven is going to stand no matter what happens today in all the products were found to infringe claim seven now there are some cases out there that say well if some claims are invalidated in others aren't and the trial was such that you know some claims apply to some products and other claims apply to other products and the judgment the money judgment didn't differentiate between those two. Then if you find some claims invalid you're going to have to remand it to figure out what part of the judgment corresponds to the claims there's still valid that's not our situation and they'll concede that here claim seven is not going to be touched on appeal in every product that was accused was found to infringe that claim and there's there's no precedent. The precedent is that it doesn't matter how many claims are infringe that that the number of claims in French does not affect the amount of damages award one claim in French is enough to warrant a full damages verdict on the merits of the cross feel. So I take it that you agree with the opposing council that there's no decision of this court that's really on point here with respect to the question of whether a failure to cover as much of the subject matter as could have been covered which comes up in light of seeing a new product on the market that could have been covered by the patent if it had been claimed court. So I think that's not the case. I haven't seen it in the reissue context the course is the question in the continuing prosecution but that's quite a different box or at least arguably a different box from the reissue box right. I don't think so

. That document is missing Mr. Orren says he had it but he said now it turns out that he supposedly lost it so all and in all that we're left with are various scraps of paper and other things that we specifically asked Mr. Orren and Escort expert of trial do these additional documents outside of the software the TST software show anything any of these claim elements that Mr. Orren supposedly invented the testimony was not a big deal. So the one document that we corroborated testimony is gone so all we're left with is Mr. Orren's oral testimony yes in fact I had the software and I did it and I think this court precedent is clear that that is not enough to establish a prior invention under one of two G. Onto the reissue issue. The first thing I think we should dress is whether or not this is an issue that we should be considering at all the first ten claims and Mr. Flaming's first reissue that the result of their success on this argument would be to invalidate a whole lot of claims that currently stand. And that's right why doesn't that end the question of whether there's jurisdiction to consider their content. But because in the Toronto case the court held that whether or not there's error on some issue like that and it wasn't a reissue claim but whether or not there is an error like that. If the liability judgment can be affirmed on some other ground then that error is harmless and need not be addressed on appeal right so so in the first ten claims to a regional which aren't reissue claims. The hew up accurate says that even if you find these other reissue claims claims 11 through 30 invalid because there wasn't an error in this case that qualifies them to be reissued. Those ten claims will stand no matter what you're finding is on the other claims. Within those ten claims the jury found that every one of the accused products infringed and I'm going to use claim seven because it's just the easiest there's no contention about that in French claim seven. So all products in French one claim there wasn't any testimony or evidence or anything else about whether or not the damages should be different depending on which claim was infringed. They would come away with a not with a stronger judgment of claim seven was invalidated in particular they wouldn't have to worry about doing something continuing to practice it or doing other things that might come within it that weren't an issue here. Traditionally a invalid judgment is and has been I think I consistently treated and stronger judgment than a non infringement judgment. Well in this case there's no chance of claim seven being invalidated claim seven's an original claim that's not subject to their reissue appeal. So claim seven is going to stand no matter what happens today in all the products were found to infringe claim seven now there are some cases out there that say well if some claims are invalidated in others aren't and the trial was such that you know some claims apply to some products and other claims apply to other products and the judgment the money judgment didn't differentiate between those two. Then if you find some claims invalid you're going to have to remand it to figure out what part of the judgment corresponds to the claims there's still valid that's not our situation and they'll concede that here claim seven is not going to be touched on appeal in every product that was accused was found to infringe that claim and there's there's no precedent. The precedent is that it doesn't matter how many claims are infringe that that the number of claims in French does not affect the amount of damages award one claim in French is enough to warrant a full damages verdict on the merits of the cross feel. So I take it that you agree with the opposing council that there's no decision of this court that's really on point here with respect to the question of whether a failure to cover as much of the subject matter as could have been covered which comes up in light of seeing a new product on the market that could have been covered by the patent if it had been claimed court. So I think that's not the case. I haven't seen it in the reissue context the course is the question in the continuing prosecution but that's quite a different box or at least arguably a different box from the reissue box right. I don't think so. You think conceptually it's the same thing. I think conceptually it's the exact same thing. I think section 251 says it's the exact same thing. Let me ask it more directly to get at the argument your opposing council is making that simply saying an expression for a threat about not having drafted the claim more broadly at the time it was initially drafted is not a mistake. It's it's a regret is different from the stick and why isn't this a regret case is opposed to a mistake case. Well I don't know I don't really understand the regret aspect of it. I mean you know he. Well you would be much happier if you had originally claimed the way you claimed in the reissue you wouldn't have the issue so to that extent you regret not having claimed it. I think I think that's true. I think every time you think you have some regret though right well but not every regret is the product of the mistake. That may be that may be true to back on the on the terms of precedent though there is a case and we cited it in our brief and I apologize for not having it my fingertips here. There's a district court case. I'm from from from Judge Robinson that it says of course you can do this in a reissue. I mean you know in that case the reissue time it expired but she was saying that in dictum at least. OK and then I'll say you know Mr. Aaron's keeps referring to the fuel packer case and I caution the court to be careful about that case because it's an old case that was talking about an old version of 37 CFR 1.75 which corresponds to talks about in flushes out section 251. And the actual holding in that case is there was a failure to comply with a component of that portion of the CFR that doesn't exist today or when Mr. Fleming was operating under the reissue procedures in that case so I caution the court to be careful in terms of the reliance Mr. Aaron's is placing on it because it just simply doesn't exist now or when Mr. Fleming was applying for his reissue the last point I'll make what what was the case that you were referring to that you would have the you would have asked for the question. The last point I'll make and I think it's a good one and it's surprising when I thought in the briefing what esports argument on reissue boil found to and this is what they say in the brief they say Fleming admitted lack of intent during prosecution of his original patent to draft claims that were ultimately submitted in the reissue patents is relevant and determinative because it demonstrates he never made an error. It's not a error correctable through reissue but in the C.R. bar case this court held that exact argument it rejected that exact argument it says in free system states that since the needles were not claimed originally they were not intended to be claimed and that absence of such intent is not an error correctable right by reissue that too is an incorrect statement of the law. So the idea that when Mr

. You think conceptually it's the same thing. I think conceptually it's the exact same thing. I think section 251 says it's the exact same thing. Let me ask it more directly to get at the argument your opposing council is making that simply saying an expression for a threat about not having drafted the claim more broadly at the time it was initially drafted is not a mistake. It's it's a regret is different from the stick and why isn't this a regret case is opposed to a mistake case. Well I don't know I don't really understand the regret aspect of it. I mean you know he. Well you would be much happier if you had originally claimed the way you claimed in the reissue you wouldn't have the issue so to that extent you regret not having claimed it. I think I think that's true. I think every time you think you have some regret though right well but not every regret is the product of the mistake. That may be that may be true to back on the on the terms of precedent though there is a case and we cited it in our brief and I apologize for not having it my fingertips here. There's a district court case. I'm from from from Judge Robinson that it says of course you can do this in a reissue. I mean you know in that case the reissue time it expired but she was saying that in dictum at least. OK and then I'll say you know Mr. Aaron's keeps referring to the fuel packer case and I caution the court to be careful about that case because it's an old case that was talking about an old version of 37 CFR 1.75 which corresponds to talks about in flushes out section 251. And the actual holding in that case is there was a failure to comply with a component of that portion of the CFR that doesn't exist today or when Mr. Fleming was operating under the reissue procedures in that case so I caution the court to be careful in terms of the reliance Mr. Aaron's is placing on it because it just simply doesn't exist now or when Mr. Fleming was applying for his reissue the last point I'll make what what was the case that you were referring to that you would have the you would have asked for the question. The last point I'll make and I think it's a good one and it's surprising when I thought in the briefing what esports argument on reissue boil found to and this is what they say in the brief they say Fleming admitted lack of intent during prosecution of his original patent to draft claims that were ultimately submitted in the reissue patents is relevant and determinative because it demonstrates he never made an error. It's not a error correctable through reissue but in the C.R. bar case this court held that exact argument it rejected that exact argument it says in free system states that since the needles were not claimed originally they were not intended to be claimed and that absence of such intent is not an error correctable right by reissue that too is an incorrect statement of the law. So the idea that when Mr. Fleming was writing his claims the only way he knew how because of his background as a programmer that he didn't intend to work to ultimately cover a product that he found out or avoid prior art that he later found out about is not the law that the intent absence or presence of intent is not the determining factor for whether or not an error was made. Thank you. Thank you very much. Mr. Aaron, a couple of minutes for for. Thank you very much. First of all the issue of whether the reissue issue should be here and heard I think is clear. I mean if the one of the two patents in suitable was the birth with rendered is invalidated not only is the public served by that but also in this particular case as we asked for a remand for a remittor on that basis. So I think there is value and it's certainly jurisdiction for this court to do it. What would be the possible theory of a remittor? Well the other than the fact that the jury might have been whipped into a frenzy by having additional claims before it. The trial evidence relating to the jury verdict was essentially that Mr. Fleming was attempting to sell his patent portfolio for a certain sum of money and rather than awarding an ongoing royalty at a. The number of dollars per unit was usually specifically said and wrote on to the very form lump sum 750,000 dollars for these two patents. Our theory for the court that lower court would be essentially look one of the two patents that is subject of this lump sum award is is out if that's what this court were to decide. It's not valid that won't support the verdict of 750 it should be essentially cut in half that would be our theory so I believe that are you or you could have a neutral endimages. But you might not want. No and we didn't have for any trial. I'm not surprised. Thank you. So the other point I believe that the lack of an intent to claim particular subject matter that is then later claimed is shows that there's a lack of a mistake. You didn't intend to do something but you did. Thank you. Okay. And will which table for the next target? Stay put. That case is submitted and now we will move on to 14 14 14. That's called against Fleming

. Okay. That's not fair. I guess that's not fair. Oh yeah