Legal Case Summary

I can see that. See you, son. That's great. Good afternoon, everyone. We have five cases on the docket today. However, two of those cases are being submitted on the briefs without oral argument. I will just for the record note those two cases. The first one is number 07-3021 Williams versus the Merit Systems Protection Board. The second one is number 07-3110 Raymond versus Office of Personnel Management. Again, those two cases are being submitted on the briefs without oral argument. The first case in which we will hear oral argument this morning, I mean this afternoon, excuse me, is number 06-1305 MEMC Electronics versus Mitsubishi. Mr. Evans? I just want to confirm you understand how the lighting system works. Yes. And you also want to confirm you reserved four minutes for your rebuttal, is that right? Yes, sir. Okay. Well, you can start whenever you're ready. Okay, please report. I'm going to see some minutes of trial for care excluding the X-go report and declaration testimony of Dr. Gostard. But the briefing before I'll announce two basic issues. Access center and the detection on the..

. On the detection, I don't see that there's any evidence that there's a standard for determining defect level around 1,100. The microscope seems to be agreed, only gives you a defect limit of about 3,000 or something like that. So what's the support for the notion that his multiple past microscopic examination could detect defects in the 1,100. The standard is a volume-efficient standard with detects per unit volume. So if you only detect a thousand per cubic centimeter or so again, you don't find any defects. The most you could say is there were no defects after to 1,000 defects per cubic centimeter. But I don't think you're answering my question. The question is, what is there in the record suggesting that his methodology is supported by say a minority of scientists? It was his testimony on your honor as a person working in the field for 15 years that that is out of detection on the scan. Dr. Eidenson. Well, he didn't show... He didn't indicate that anybody else did it with this multiple past microscope technology. Well, he performed a calculation whereby he showed the detection whether he was working at it. And he showed that he had analyzed a lot more than three passes. Yeah, yeah, yeah, but the question is a downward question. The question is, did the district court abuse his discretion or discretion in excluding this testimony in an order for the testimony for that to be an abuse of discretion? There has to be some showing that this was an established method of doing it or at least the minority of scientists would do it this way. It's a reliable method of doing it, right? Yes, sure. Okay, so where's the evidence that the multiple past approach was an established or reliable method of doing it? Who just with his oral testimony submitted that version? And you based on his 15 years in the field having applied various detection elements and having said, this is how the industry does it. Why is that sufficient under doubt? Well, under doubt, if you can show that it's something you do in the ordinary course, not for the litigation, you don't have to show general acceptance of the minority of scientists espousing. You have to show that since you do it as a matter of order, of course, that therefore it's scientifically reliable. And here we've submitted scientifically reliable because not only did he do three views, he did a lot more than three views, and there's no evidence in the record that anybody has ever found an appropriate defect in the relevant zone

. All evidence in the relevant zone, whether it's the commercial data on which millions and dollars were away from their soul, has shown no one red defects. When we deposed Dr. Furia, their scientist works in the field, he said that they're pure self-independent of COPD defects. When our own expert looked at it, he found no COPD defects. They published a paper where they said that there are no wronged-independent defects, which they defined to be a one red defects. So everyone who's looked at this cell, and it's literally thousands and thousands of people using the cellophane, tens of thousands of cubic centimeters of cellophane have been analyzed, and no one has found these defects in cellophane. At least admitted that creates an element of liability. I have a related question that you've threw it in my name. I have a related question which, methodally, demonstrates my ignorance, and I'm hoping that you can fill in my gaps. The detection limit in the art is 3,300 defects for cubic centimeter. Is that correct? The 3,300 was calculated because the field of view through his microscope created an area that was 0.202 centimeters squared. So what he did is he took his field of view and multiplied by the depth of the H, you know, 30-minutes say, go H, for the FPD test. They'll H into a 15 microns. When you multiply 15 microns times a 0.202 square centimeter field of view, that's where the 3,300 comes from because it's 1,3300 in cubic centimeter cellophane. So you get a detection limit, 3,300. Now if this field of view happened to be larger because he had a different IP set, then he would have had a different detection limit because he would have had a different area. Or if he had done side by side views. What seems to be at least part of the issue is whether you can detect down to a thousand defects 10 to the 3 to the third. Is that below the normal detection level? I think the detection level will depend on the field of view of your microscope, the time period on which you've etched the cellophane and how deep it etches. I suspect that 15 microns is about standard for the etched depth and for the field of view of the microscope. I suspect that the field of view that was in his microscope is about standard

. I know that Dr. Adonison at the A13928 paragraph 18, she's skilling the art. She testified that she was aware of his detection limit and that she had detected defects in a detection limit at or below 1000. So it's not something that was... Where did she testify that? In paragraph 18 of her declaration. Based on her appendix number A13928, please. This is Anna Adonison, which expert was this again? This was an expert for Sinto. Which what's the name? This is the point you know, your reply brief, correct? Yes, sir. Was this brought to the attention of the District Court judge, this Adonison testimony? Yes, sir. Can we... is there a place in the record where we can see that it was brought to the District Court's attention? I did certainly for that to you, I have a argument I don't know that and do it standing. It's a point, so maybe on the bottle, if you're kind. But it would be helpful to know that. Because I did see that in your reply brief and it's a pertinent point but I wasn't having seen it there. I think the first time I thought went off, perhaps incorrectly as to whether it was raised below. This is the paragraph 18 of her declaration. Yes, sir. Well, what did she mean by the same or similar methods? I would assume she's here to say, go ahead, say, go ahead and say, that's how they do the ethical and the tasks. Yes, but this is a trial for us

. We can't assume that. That's what we've got. How do we know that she's talking about the same methodology that your expert reported to you? In her papers, which you've been to witness prior to this case, she regularly reports on FPD defects. And the test that you do for the FPD defect is the sick election followed by a microscopic examination. It's in all of them. In many of her papers, the FPD test. It's just like we have in this case, what was this gentleman's name? I've had problems pronouncing it both in and out of court. What's his name? Mr. Meal's start now. For purposes of this question of whether or not his testimony was incorrectly excluded, what are the, we have in here an expert report. And then there's I think six separate declarations. What are the critical documents in terms of the report and the declarations that, in your view, establish the error in the test. And then the court judges exclusion of his testimony. The second declaration is directed to the publications that show that this was all established in the art. So you'd say first of all you will lie on the second declaration. Yes, Your Honor. Okay. And then what I would rely on for the Axial Cemetery is the misdiagnote at A01283. When he measured, it would be in the density. A0, what now? A01283. A0128, okay. What you'll see there is that the wayfers had 80 millimeters of vacancy dominant of Lomber-free Silicon from the center measured out radiating. So whether you took a strip, correct? A strip, right

. So when you're measuring a circle, not only the measure the radius wants to know the diameter of the circle, what he found is that there were 80 millimeters in the radial direction at minimum for each of the wayfers and the furt and one of the groups. And what you were referring to for Ms. Dr. Idensen, is that her name? Yes. Was she, in your view, was she purportly speaking to the validity of this method of testing? No, no, no. What was she speaking to? When Dr. Idensen spoke, she was talking about the detachment on it. Oh, for the dormant. All right. Where does Mule Stagno say that this microscopic approach that he's using is standard industry practice? Will you be in this separation? Is there a fourth separation? They never are posed, and that's why we're going to go into the declaration of what they think. That's a motion. Yeah, but I just want to see exactly what you're saying. I will find that for you to give to you about it. So right now, what you're saying, this turns is that you rely on the second declaration, his testimony at A1238, and you noted another declaration. What I was going to at the A1287 was to point out the fact that the act on the axis symmetry point is that there were 80 millimeters of rather material, or at a window of 15 improvement, or a frontman. So whether a wobble is a little, you lose a few millimeters on the axis symmetry question. It doesn't matter because we can readily find it both at the center of the way for him. I understand. What I'm concerned about is this question of excluding his testimony, because it does seem to color the case. It's obviously a better case for you if he's in instead of out. Yes, right. And you said you rely on the second declaration, and what else do you rely on that you say supports the proposition that he should have been allowed to stay in. In other words, that he gets over the Dalbert hurdle

. I would say his third declaration talked about the rational practice. His fourth and fifth cover of the cover of the detection one, his number of declaration cover the call author paper, where they use his identical methods to. Present evidence to the world that their way forward have parapsychism. And you're saying this I'll close it out because you I don't want to hold you into your rebuttal. But you're saying that what you've just cited to us establishes that he met the Dalbert standard. And I would amend that perhaps in my book. Well, you had a number of questions. So we'll give you your full four minutes on rebuttal. And on rebuttal, let's talk a little bit about the enablement issue. Thank you. All right. We'll hear from I guess it's a simco, right? It is now you're Mr. Raider. Yes, sir. May I please support Terry Raider, for any of the at least. Here your cross appeals and property. Your cross appeals improper, isn't it? Your honor, it was it was a conditional cross appeal. We've held that if all you're doing is supporting the judgment, it's not a proper cross appeal. You aware of those cases? We were we were concerned that that are you aware of the case? Yes. Then why did you file a cross appeal? You realize that's potentially sanctionable counter? Well, we thought of your honor because we truly believe that the rulings that the judge made in connection with infringement or not infringement. But what's that have to do with it? If all you're doing is supporting the judgment, you got to you got a decision from the judge in validity. And you're supporting that judgment on a different grant. He gave it to you on lack of enablement

. You're supporting it on the ground with obvious answers or anticipation. What's the basis for filing cross appeal? Well, you're under the testing that we just discussed. And the prior art is the same test. So that's not the answer. It's the legal question. When you're not seeking to expand the judgment, you are not entitled to file a cross appeal. In fact, we've said filing cross appeal and getting extra pages under those circumstances, sanctionable counter. What's your basis for filing the cross appeal? Our basis, Your Honor, was the good faith belief that we had a position on the cross appeal if this court reversed the federal trial. But that has nothing to do with expanding the judgment. The cross appeal doesn't affect the scope of the judgment. Your Honor, if we aired, we apologize. But we really had a good faith belief even in view of the cases this court has had on cross appeal. I don't see how you could possibly have a good faith for it. We've decided this exact question several times and said, you know, entitled the file a cross appeal under those circumstances. In this particular case, Your Honor, we felt that it was appropriate. What happens to the cross appeal if we affirm some re-judgment on infringement? We've agreed that the prior art under those circumstances would not be anticipatory. Because of the fact that as we were just discussing a few months ago, the law courts evidentiary ruling on testing was such that we believe that there is no abusive discretion by the district court. In fact, no error has been raised by the MIMC to the contrary. What MIMC is presenting in this appeal is identical to the same arguments that it made to the law court. And with respect to the microscope issue, the microscope issue relates to surface testing, not to volumetric testing. And as Judge Armstrong pointed out, at page 20 of her opinion, the issue of the microscope was something as with everything else that MIMC had presented, that Mule Stagno completely unsupports and has an unscientific explanation that he performed many more views. And this is exactly the type of imprint precise and unscientific testimony that is in a mis-advanced order. So we felt that the issue that the court addressed and axial symmetry was the other issue, the BMD test

. If we go on to Acts of symmetry, what's your response to their reliance on your expert as saying that this method of testing for these defects is the same that's known in the industry? Well, you're on this sort of goes back to what we were just talking about. Dr. Eidson was testifying about invalidity when she made those statements. And she was testifying about invalidities based on her own publications, which show these areas of regions called LTCs. And as the court probably knows, in the case of MIMC, they disavowed on the issue of enablement. And they disavowed that LBAN was an axially symmetric region, which had were vacancies with the predominant intrinsic point defect and substantially less than 1000 obliterated vacancies. What is she talking about the same testing method that Mule Stagno used? No, she's not. She's talking about the same testing method that Mule Stagno used. She listed the test that she used when we've identified them in our own briefing material. And she did not use the microscopic test that's referred to. What did she use? She used different types of tests. I think she even used a gold etching kind of test as well as copper decoration and some of the other tests. But what we found from this in Judge Armstrong agreed. She kept looking from March of 2004 when she first told MIMC they had deficiencies in their testing that you can't take a sliver from one quarter of a wafer. And use that sliver with this BMD test and characterize the entire surface of the wafer as being either axially symmetric with respect to the vacancy area or with the same test. We're not talking about axially symmetric now. We're talking about the adorameration, the number of defects that are counted, which seems to be what your witness is addressing in her testimony. And the key question here is whether Mule Stagno was using the same test that she says is a standard test. She wasn't using the same test that he's talking about. And he never established that it was a standard test. There's no evidence that it's a standard test used by anyone to test for the claim characteristics. What Dr. Eiderson was talking about was she was using, and we have this on page 11 of our brief, she used selective etching, copper decoration, gold diffusion, and heat treatments combined with x-ray topography

. That is not the same as where you read it from. That's from the record. It's one for seven, three now. Mr. Raider, before you run out of time, the way Mr. Evans did, could we talk just for a minute about enablement? I realize that the witness problem is here also, but I'm having a problem with the enablement issue. Can I ask you a question about it? Yes. The trial judge correctly references in Ray Wands and sets out more or less the seven factors that we've described in in Ray Wands as being relevant to the question of whether undue experimentation would be required. Yes. The trial judge dealt with that on summary judgment. My question to you is, what happened to the enablement is a question of law with underlying facts. Is that correct? Well, your honor if I could address this. Is that the proper statement of the rule? I mean, would you agree that's the rule? I would agree that certainly enablement, the ultimate conclusion of nameless matter, law, underlying facts. The seven factors that in Ray Wands describe, Wands describe basically factual inquires. And judge on strong made factual inquires under every one of those factors? Well, that's the problem. She did it on summary judgment. Nowhere in her opinion could I find her ever saying no reasonable jury could find the facts other than the way she found them. I thought there was a request for a jury trial, wasn't there? There was in the written. And aren't they entitled to a jury trial on genuine material issues, genuine issues of material fact that we're in dispute? We don't believe so, your honor, because of the jury trial. You're not entitled to a jury trial on genuine issues of fact that are in dispute? Well, there aren't any genuine issues of fact in dispute. That's the reason she was able to grant some judgment. But it doesn't you agree that she made a mistake in requiring collaboration of the evidence to support the patent? There's no requirement that the patent team supporting a patent have a corroborated evidence, is that? Well, there is in the case where we have their use of that to support the label. Here, the label, but that has to be the case

. Now, that has to be the case that they suggested that when a patent team is providing evidence to support the validity of a patent that that evidence is rejected and must corroborate, what case says that? That's, I agree. That case does not exist. So, she made a mistake. I don't think so, because she made findings relating to the undisputed. No, no, on this point, on the corroboration requirement, she made a mistake, right? I would not agree that she made a mistake. The answer is yes, she clearly made a mistake, but your answer is it's not relevant to the outcome. And it's not relevant to the outcome. Now, go back to my question, which is how could she decide all these factual issues and never say no reasonable jury could have come out this way, and therefore I'm giving some re-judgment? Because all those factual issues as to whether undue experimentation were required, or what this whole argument was all about. The question was whether the patent was sufficiently clear about what how you do the hot zones, in fact you do all the rest of it, wasn't it? When that would all this argument was over? But on the evidence that the forehead, it looked at the unobjected two declarations in three experts, Park, Wounds, United City. That's not the question. The question is not whether you put in evidence that was fortifying the lack of a neighbor, but the question is, is there a genuine issue? And there's evidence on the other side, isn't there? There's no evidence on the other side that there's a genuine issue with her effect. We have a very cool disclosure in the patent, and there was testimony about the adequacy of that disclosure. That testimony was not reliable because when it came to the actual issue of a enablement runner, they only relied upon this, that one document, which is a very passing casual reference to L band. I don't understand what you're talking about. There's declarations from both inventors saying that the hot zone problem could be solved using knowledge of those skilled in the art without undue experimentation, right? Look at the Park patent, also. The Park patent has a substantially greater amount of detail, plus the Park patent is directed to the method of not to a product. This case is very similar to the work before you go away. Isn't there testimony from the inventors here that the hot zone problem could be solved without undue experimentation? But that's testimony from the inventors without any support from the disclosure. Well, that's the point. You're saying there has to be some sort of corroboration. They say that the disclosure is sufficient to enable one skilled in the art to do this without undue experimentation. That's coniferious, isn't it? And they so testify, right? They did so testify, but the fact is... I certainly couldn't, but I'm not one skilled in that art. Could read that patent and figure out how to do this in a way that you get below 1000 defects or what the rest of that. You say your experts say no, it can't be done. Their experts say, oh yes, all you have to do is tweak the hot zone and have a little of this, a little insulation, and do a few things. And it'll vary from manufactured to manufactured depending on how they do it. They have all that in there. And I can't find perhaps I missed it. Can you help me find in the trial judges otherwise? Excellent opinion. Where she says, ha, these facts are not genuinely in dispute. And no reasonable jury could have said so. Those private precise words, especially the last few words about the jury, I agree. But if I would refer you to page 27 or opinion, 87, she talks about that again, if you may have been mistaken or referring to it as robbery, you have an answer. But the fact is, this is the only evidence that MEMC has on the issue of the name. The patent itself creates a presumption of validity. Which can be rebutted, obviously, if there is a situation like we have here where when tested, they relied upon only the only. So the judge accurately and correctly found, even if she didn't use precise words, she failed the judgment. I can tell you, anyone issues a fact. But those precise words are critical to her ability to give some reject. And she has got to tell us that she has sufficient grounds say that I don't have to go to a jury on these disputed facts because no reasonable jury could have found for these people. I think the judge plays you correctly. And I'll just add that I find it very difficult. I'm having a hard time being comfortable with the grant of summary judgment on the enablement issue

.. I certainly couldn't, but I'm not one skilled in that art. Could read that patent and figure out how to do this in a way that you get below 1000 defects or what the rest of that. You say your experts say no, it can't be done. Their experts say, oh yes, all you have to do is tweak the hot zone and have a little of this, a little insulation, and do a few things. And it'll vary from manufactured to manufactured depending on how they do it. They have all that in there. And I can't find perhaps I missed it. Can you help me find in the trial judges otherwise? Excellent opinion. Where she says, ha, these facts are not genuinely in dispute. And no reasonable jury could have said so. Those private precise words, especially the last few words about the jury, I agree. But if I would refer you to page 27 or opinion, 87, she talks about that again, if you may have been mistaken or referring to it as robbery, you have an answer. But the fact is, this is the only evidence that MEMC has on the issue of the name. The patent itself creates a presumption of validity. Which can be rebutted, obviously, if there is a situation like we have here where when tested, they relied upon only the only. So the judge accurately and correctly found, even if she didn't use precise words, she failed the judgment. I can tell you, anyone issues a fact. But those precise words are critical to her ability to give some reject. And she has got to tell us that she has sufficient grounds say that I don't have to go to a jury on these disputed facts because no reasonable jury could have found for these people. I think the judge plays you correctly. And I'll just add that I find it very difficult. I'm having a hard time being comfortable with the grant of summary judgment on the enablement issue. When you stack up on one side, your experts. And on the other side, the disclosure in the patent, the park patent, which doesn't talk about a process but talks a lot about the development of the hot zone. And then also to what Judge Diplos is referring, the declarations. You may very well win, I don't know, on a trial. But I don't see how anybody can say they're not genuine issues of material fact on the enablement issue. Well, Your Honor, I think that Judge Ernst Strong did an exceptional job, an extraordinary job of going through the record of very counter-truck record. We should try to be heard in the fact finding maybe and saying who's credible and who's not. I think that she did exactly what this report judge should do in connection with being presented with opposing sets of positions and looking at it and determining on the basis of that record. Whether there was a genuine issue of fact on the issue that she was picking at the same time. Let me ask you, Mr. Goin back to the matter we were discussing earlier about the exclusion of Mr. Mielstanoz by Senator Mielstagnos testimony. Dr. Idenzone, I guess your expert said that I am familiar with the detection limits that are described in the 302 patent. We used the same or similar methods for evaluating the 1986 crystal that we had created. We used a detection limit that was no higher than 10 cubed defects and so forth. And I think you pointed out that's a 13,928 at paragraph 18. I mean, doesn't that buttress? Why does that not buttress his credibility? Not his credibility, but buttress, his at least being allowed to appear not being knocked out on a dull their basis. Well, because the testimony has to be both reliable and after fit the situation, there is no scientific, a judge aren't strong asked them to come forward with a scientific document that would show that there is any standard test for axial symmetry, any standard test for detecting... What's the type of deglamoration issue here? Less than 1000 defects per cubic centimeter. There is no standard test for determining the defects

. When you stack up on one side, your experts. And on the other side, the disclosure in the patent, the park patent, which doesn't talk about a process but talks a lot about the development of the hot zone. And then also to what Judge Diplos is referring, the declarations. You may very well win, I don't know, on a trial. But I don't see how anybody can say they're not genuine issues of material fact on the enablement issue. Well, Your Honor, I think that Judge Ernst Strong did an exceptional job, an extraordinary job of going through the record of very counter-truck record. We should try to be heard in the fact finding maybe and saying who's credible and who's not. I think that she did exactly what this report judge should do in connection with being presented with opposing sets of positions and looking at it and determining on the basis of that record. Whether there was a genuine issue of fact on the issue that she was picking at the same time. Let me ask you, Mr. Goin back to the matter we were discussing earlier about the exclusion of Mr. Mielstanoz by Senator Mielstagnos testimony. Dr. Idenzone, I guess your expert said that I am familiar with the detection limits that are described in the 302 patent. We used the same or similar methods for evaluating the 1986 crystal that we had created. We used a detection limit that was no higher than 10 cubed defects and so forth. And I think you pointed out that's a 13,928 at paragraph 18. I mean, doesn't that buttress? Why does that not buttress his credibility? Not his credibility, but buttress, his at least being allowed to appear not being knocked out on a dull their basis. Well, because the testimony has to be both reliable and after fit the situation, there is no scientific, a judge aren't strong asked them to come forward with a scientific document that would show that there is any standard test for axial symmetry, any standard test for detecting... What's the type of deglamoration issue here? Less than 1000 defects per cubic centimeter. There is no standard test for determining the defects. There is no test for determining defects in less than 1000 defects. They were given two years to find a scientific document between 2004 and 2006 when she made her rule. What are your quality control records mean when they say that they're defect-free? I'm very troubled by the fact that you apparently didn't produce a witness who was knowledgeable about those records and able to testify as to what they meant. Those defects, those records do not mean that they can testify. Why did you produce a witness to testify about the records? Because the testimony was given that if it said zero defects, that was only a pursuant to the test that Mule Stagnol had done which we had already established could not detect down to the sensitivity of less than 1000 defects. It's testimony that your quality control used the same test that he used. No, no, there's no test for that. What test did they use? Did your witnesses testify as to what your quality control records meant? These were not tests that were done at our client. No, that's not my question. You have quality control records which say that this material is free of arm-righted defects, right? No. No, there's no testing other than for deep defects and that the defect which is for COPs only not for a glomerated oxygen-pound plexus that we refer to and which bach-rightened was referring to as LDC. There's no testing for that down in the industry. There is testing done for deep defects in the testing of the test. Is there testing in the industry done for that purpose? That's the problem, Your Honor. The testing is not done for the words vacancy, glomerated vacancy and transit point defense. It's for bachs which are COPs. Are they the same? No, they're not the same. Mr. Raider, I just, since you're about to run out of time or already have, I just want you to understand, don't misunderstand my question to you. Had this been a trial, she might very well have come out with the right answers. The question is, are they entitled to a trial? And if they're entitled to a trial, are they entitled to a jury on the fact issues? That's what's puzzling. Well, I think this is the problem, Your Honor, because of the issue that this court is looking at, probably one of the best reasons most detailed and very consistent with this federal circuit principles. I love her opinion

. There is no test for determining defects in less than 1000 defects. They were given two years to find a scientific document between 2004 and 2006 when she made her rule. What are your quality control records mean when they say that they're defect-free? I'm very troubled by the fact that you apparently didn't produce a witness who was knowledgeable about those records and able to testify as to what they meant. Those defects, those records do not mean that they can testify. Why did you produce a witness to testify about the records? Because the testimony was given that if it said zero defects, that was only a pursuant to the test that Mule Stagnol had done which we had already established could not detect down to the sensitivity of less than 1000 defects. It's testimony that your quality control used the same test that he used. No, no, there's no test for that. What test did they use? Did your witnesses testify as to what your quality control records meant? These were not tests that were done at our client. No, that's not my question. You have quality control records which say that this material is free of arm-righted defects, right? No. No, there's no testing other than for deep defects and that the defect which is for COPs only not for a glomerated oxygen-pound plexus that we refer to and which bach-rightened was referring to as LDC. There's no testing for that down in the industry. There is testing done for deep defects in the testing of the test. Is there testing in the industry done for that purpose? That's the problem, Your Honor. The testing is not done for the words vacancy, glomerated vacancy and transit point defense. It's for bachs which are COPs. Are they the same? No, they're not the same. Mr. Raider, I just, since you're about to run out of time or already have, I just want you to understand, don't misunderstand my question to you. Had this been a trial, she might very well have come out with the right answers. The question is, are they entitled to a trial? And if they're entitled to a trial, are they entitled to a jury on the fact issues? That's what's puzzling. Well, I think this is the problem, Your Honor, because of the issue that this court is looking at, probably one of the best reasons most detailed and very consistent with this federal circuit principles. I love her opinion. I appreciate she didn't try the case. She didn't have any points, but she, I think she concluded, she may not have added the additional words, no reason of the jury, but it's very clear if you read through her opinion. And her judgment, which I understand this court clearly is more interested in the judgment whether it's correct. And the fact is, she determined in her own mind and through the opinion she wrote that there were no genuine issues. And she can grant some of her judgment, basically. Thank you, Mr. Ray. We'll hear from Mr. Ray. Mr. Ray, let me figure out here so that everybody gets the same amount of time. Yes, sir. Let's see, correct me. Your count comes up wrong. Mr. Raider had six extra minutes, okay? So that takes him up to 21 minutes, right? Yes, sir. Okay. You went over by about two minutes into your four minutes, okay? So that takes, so that took you up to 17, okay? So why don't we give you, we'll give you a full five minutes. Is that about right? Thank you. You should have heard of that. I love it. I hope that's about equal. So, and if it isn't, there's nothing you can do about it

. I appreciate she didn't try the case. She didn't have any points, but she, I think she concluded, she may not have added the additional words, no reason of the jury, but it's very clear if you read through her opinion. And her judgment, which I understand this court clearly is more interested in the judgment whether it's correct. And the fact is, she determined in her own mind and through the opinion she wrote that there were no genuine issues. And she can grant some of her judgment, basically. Thank you, Mr. Ray. We'll hear from Mr. Ray. Mr. Ray, let me figure out here so that everybody gets the same amount of time. Yes, sir. Let's see, correct me. Your count comes up wrong. Mr. Raider had six extra minutes, okay? So that takes him up to 21 minutes, right? Yes, sir. Okay. You went over by about two minutes into your four minutes, okay? So that takes, so that took you up to 17, okay? So why don't we give you, we'll give you a full five minutes. Is that about right? Thank you. You should have heard of that. I love it. I hope that's about equal. So, and if it isn't, there's nothing you can do about it. Mr. Benjamin, if you could give, I'll accept that. Give Mr. Evans a full one. I'm trying to make it equal serving as a same amount. I think that's about right. Are you comfortable with that, Mr. Ray? Yes, sir. Okay. If I could address them, Washington's on the table first. In her opinion, at 141, A0081, she expressly discussed, I think since, used somebody's lower detection limit. So, not only to call for judges attention, but she also discussed it in her opinion. Now, where's that again, Mr.? In page 41 of her opinion, it lines 1718 down to 24. And this is you're saying she's focusing in on what we discussed that was the joint appendix 13,928. Yes, we're back right in the tent. I mentioned that she had used lower detection limits. You asked earlier about where to doctor Moustaglo, explain the world's heart support. Which issue, would you help me? Which issue, are you addressing the accessibility of the expert witness? You're back to that. Where's the ability of an attachable under the doctor Moustaglo's reliability for going down to 1.30 or..

. Mr. Benjamin, if you could give, I'll accept that. Give Mr. Evans a full one. I'm trying to make it equal serving as a same amount. I think that's about right. Are you comfortable with that, Mr. Ray? Yes, sir. Okay. If I could address them, Washington's on the table first. In her opinion, at 141, A0081, she expressly discussed, I think since, used somebody's lower detection limit. So, not only to call for judges attention, but she also discussed it in her opinion. Now, where's that again, Mr.? In page 41 of her opinion, it lines 1718 down to 24. And this is you're saying she's focusing in on what we discussed that was the joint appendix 13,928. Yes, we're back right in the tent. I mentioned that she had used lower detection limits. You asked earlier about where to doctor Moustaglo, explain the world's heart support. Which issue, would you help me? Which issue, are you addressing the accessibility of the expert witness? You're back to that. Where's the ability of an attachable under the doctor Moustaglo's reliability for going down to 1.30 or... An eglomeration. Yes. Save a minute of your rebuttal time to talk about enablement, which you never mentioned in your opening argument. I will. That page would be at A, 17,032. Here, there are three there. 17,532. Yes. Over 17,033. There's a paragraph three there that explains in detail. I'll be implemented. I'll be the standard. And I believe when a patty is there, I'm like, a powder for it. The next deployment test, this is mechanical, is defense per unit volume, that you don't have a situation where you need to go outside to a publication. If he says four gallons of chemical per ten gallons of water, where does that say that this is a standard in the industry? It does say the standard of industry could have defined it in the definition of a patent. There's a special section of the back of the patent. Or it gave a definition of a section. Oh wait, you're looking back in the patent now? Yes, with the patent defined, what it means to be a suggestion free of language defense. And I'm looking at column 15. column 15, line 47. It's a densely free of agglomerated intrinsic point defects. Chalmina concentration of agglomerated defects, which is less than the detection limit of these defects, which is currently about ten to the third defects per centimeter cubed. But it doesn't tell you how to determine the number of defects

. An eglomeration. Yes. Save a minute of your rebuttal time to talk about enablement, which you never mentioned in your opening argument. I will. That page would be at A, 17,032. Here, there are three there. 17,532. Yes. Over 17,033. There's a paragraph three there that explains in detail. I'll be implemented. I'll be the standard. And I believe when a patty is there, I'm like, a powder for it. The next deployment test, this is mechanical, is defense per unit volume, that you don't have a situation where you need to go outside to a publication. If he says four gallons of chemical per ten gallons of water, where does that say that this is a standard in the industry? It does say the standard of industry could have defined it in the definition of a patent. There's a special section of the back of the patent. Or it gave a definition of a section. Oh wait, you're looking back in the patent now? Yes, with the patent defined, what it means to be a suggestion free of language defense. And I'm looking at column 15. column 15, line 47. It's a densely free of agglomerated intrinsic point defects. Chalmina concentration of agglomerated defects, which is less than the detection limit of these defects, which is currently about ten to the third defects per centimeter cubed. But it doesn't tell you how to determine the number of defects. The patent does them, right? The patent tells you that you could detect defects. It doesn't tell you what method is a reliable method to use for that purpose. But it identifies the... Correct. Yes, right? Yes, it does not tell. I think it does though, you honor. Because it identifies an FPD as an agglomerated defect. It's an agglomerated defense and defects come with multiple names for the same thing, which is what we do is confusion. A D defect is a COP, is an SPD, is a void. And the reason the patent uses agglomerated defect is so we have one word for all of them. Okay, well, where does it tell me... Where does it tell me what method is to be used to test for that? And how do I know that's the same method that Mule's stagnant? Because an SPD stands for flow, pattern, defect. And the reason it's called that is because when the sake of watching etches into the silicon, it forms a gas bubble. And that creates a flow pattern. Okay, so I understand that. And the question is, is there a standard methodology for measuring this that everybody would know? Is a standard 30-minute estuary, does a standard look at it on the microscope? And when you calculate the judgment... What does the patent refer to looking at it under the microscope? It's understood when you say FPD, you have to look at it on the microscope because it's too small to see if the negai

. The patent does them, right? The patent tells you that you could detect defects. It doesn't tell you what method is a reliable method to use for that purpose. But it identifies the... Correct. Yes, right? Yes, it does not tell. I think it does though, you honor. Because it identifies an FPD as an agglomerated defect. It's an agglomerated defense and defects come with multiple names for the same thing, which is what we do is confusion. A D defect is a COP, is an SPD, is a void. And the reason the patent uses agglomerated defect is so we have one word for all of them. Okay, well, where does it tell me... Where does it tell me what method is to be used to test for that? And how do I know that's the same method that Mule's stagnant? Because an SPD stands for flow, pattern, defect. And the reason it's called that is because when the sake of watching etches into the silicon, it forms a gas bubble. And that creates a flow pattern. Okay, so I understand that. And the question is, is there a standard methodology for measuring this that everybody would know? Is a standard 30-minute estuary, does a standard look at it on the microscope? And when you calculate the judgment... What does the patent refer to looking at it under the microscope? It's understood when you say FPD, you have to look at it on the microscope because it's too small to see if the negai. Well, it says FPD means you have to etch it. That gives you the gas bubble, you use the flow pattern. But you can't see those. Yeah, I understand it. But he said that he had to make these multiple passes. And my understanding of what the district court said was that this multiple pass approach has not shown to be reliable or to use in the industry, right? He depends on the field of view of your microscope. How much still can you look at it? Well, we never really got into that issue. I tried to introduce it earlier. I'm asking that the debate be cause as near as I read the record, there is no standard methodology for getting down to 10 to the third defect measurement. He explains it by saying, well, if I look at three slices, I go from 3300 to something like 1100, which is substantially the same as 1000, right? And now what he says, I can't make sense out of that. It makes no sense to me to say your methodology leads you to 3300 as the closest level you can detect. But if you look at three pieces of 3300, suddenly you're seeing 1100. Explain that to me. It's defects per unit volume. What the 3300 comes from is that through a 50-power microscope, you will be analyzing silicon that has been etched. And the volume of the silicon that's been etched is 133,000 or 13300 of a cubic centimeter of silicon. It's a volume test. And so what's happened is if you look through just one field of view, you need to look through 3300 views, the 50-power to look at a full cubic centimeter. So if you don't see any flow patterns and just one view, the other 2,999 might have a flow pattern. So you can't say it's zero. You can only say it's zero accurate to 3300 per cubic centimeter. That's where it came from. He calculated that and showed that

. Well, it says FPD means you have to etch it. That gives you the gas bubble, you use the flow pattern. But you can't see those. Yeah, I understand it. But he said that he had to make these multiple passes. And my understanding of what the district court said was that this multiple pass approach has not shown to be reliable or to use in the industry, right? He depends on the field of view of your microscope. How much still can you look at it? Well, we never really got into that issue. I tried to introduce it earlier. I'm asking that the debate be cause as near as I read the record, there is no standard methodology for getting down to 10 to the third defect measurement. He explains it by saying, well, if I look at three slices, I go from 3300 to something like 1100, which is substantially the same as 1000, right? And now what he says, I can't make sense out of that. It makes no sense to me to say your methodology leads you to 3300 as the closest level you can detect. But if you look at three pieces of 3300, suddenly you're seeing 1100. Explain that to me. It's defects per unit volume. What the 3300 comes from is that through a 50-power microscope, you will be analyzing silicon that has been etched. And the volume of the silicon that's been etched is 133,000 or 13300 of a cubic centimeter of silicon. It's a volume test. And so what's happened is if you look through just one field of view, you need to look through 3300 views, the 50-power to look at a full cubic centimeter. So if you don't see any flow patterns and just one view, the other 2,999 might have a flow pattern. So you can't say it's zero. You can only say it's zero accurate to 3300 per cubic centimeter. That's where it came from. He calculated that and showed that. And so if his field of view expands and he looks at more silicon, if he looks at something more, this is the 1,000th of a cubic centimeter. Then you can say zero. And I know there's not any in that one, but I don't know about the other 999th of a full cubic centimeter. Which is what the pattern is, what's the counter if he tells it? Why did he not have an outside expert testifying that the next time? I'm done. I didn't have an outside expert drawn because this is a very tight industry. There's only three, there's very four major patterns. We couldn't find it. This is an interesting witness who had the tools and the experience to do this. The expert with big news had 15 years of experience. And we didn't perceive this as being an issue that would be contest. Thank you, Mr. Evans. Thank you, Mr. Raider, the case is submitted. Thank you.

I can see that. See you, son. That's great. Good afternoon, everyone. We have five cases on the docket today. However, two of those cases are being submitted on the briefs without oral argument. I will just for the record note those two cases. The first one is number 07-3021 Williams versus the Merit Systems Protection Board. The second one is number 07-3110 Raymond versus Office of Personnel Management. Again, those two cases are being submitted on the briefs without oral argument. The first case in which we will hear oral argument this morning, I mean this afternoon, excuse me, is number 06-1305 MEMC Electronics versus Mitsubishi. Mr. Evans? I just want to confirm you understand how the lighting system works. Yes. And you also want to confirm you reserved four minutes for your rebuttal, is that right? Yes, sir. Okay. Well, you can start whenever you're ready. Okay, please report. I'm going to see some minutes of trial for care excluding the X-go report and declaration testimony of Dr. Gostard. But the briefing before I'll announce two basic issues. Access center and the detection on the... On the detection, I don't see that there's any evidence that there's a standard for determining defect level around 1,100. The microscope seems to be agreed, only gives you a defect limit of about 3,000 or something like that. So what's the support for the notion that his multiple past microscopic examination could detect defects in the 1,100. The standard is a volume-efficient standard with detects per unit volume. So if you only detect a thousand per cubic centimeter or so again, you don't find any defects. The most you could say is there were no defects after to 1,000 defects per cubic centimeter. But I don't think you're answering my question. The question is, what is there in the record suggesting that his methodology is supported by say a minority of scientists? It was his testimony on your honor as a person working in the field for 15 years that that is out of detection on the scan. Dr. Eidenson. Well, he didn't show... He didn't indicate that anybody else did it with this multiple past microscope technology. Well, he performed a calculation whereby he showed the detection whether he was working at it. And he showed that he had analyzed a lot more than three passes. Yeah, yeah, yeah, but the question is a downward question. The question is, did the district court abuse his discretion or discretion in excluding this testimony in an order for the testimony for that to be an abuse of discretion? There has to be some showing that this was an established method of doing it or at least the minority of scientists would do it this way. It's a reliable method of doing it, right? Yes, sure. Okay, so where's the evidence that the multiple past approach was an established or reliable method of doing it? Who just with his oral testimony submitted that version? And you based on his 15 years in the field having applied various detection elements and having said, this is how the industry does it. Why is that sufficient under doubt? Well, under doubt, if you can show that it's something you do in the ordinary course, not for the litigation, you don't have to show general acceptance of the minority of scientists espousing. You have to show that since you do it as a matter of order, of course, that therefore it's scientifically reliable. And here we've submitted scientifically reliable because not only did he do three views, he did a lot more than three views, and there's no evidence in the record that anybody has ever found an appropriate defect in the relevant zone. All evidence in the relevant zone, whether it's the commercial data on which millions and dollars were away from their soul, has shown no one red defects. When we deposed Dr. Furia, their scientist works in the field, he said that they're pure self-independent of COPD defects. When our own expert looked at it, he found no COPD defects. They published a paper where they said that there are no wronged-independent defects, which they defined to be a one red defects. So everyone who's looked at this cell, and it's literally thousands and thousands of people using the cellophane, tens of thousands of cubic centimeters of cellophane have been analyzed, and no one has found these defects in cellophane. At least admitted that creates an element of liability. I have a related question that you've threw it in my name. I have a related question which, methodally, demonstrates my ignorance, and I'm hoping that you can fill in my gaps. The detection limit in the art is 3,300 defects for cubic centimeter. Is that correct? The 3,300 was calculated because the field of view through his microscope created an area that was 0.202 centimeters squared. So what he did is he took his field of view and multiplied by the depth of the H, you know, 30-minutes say, go H, for the FPD test. They'll H into a 15 microns. When you multiply 15 microns times a 0.202 square centimeter field of view, that's where the 3,300 comes from because it's 1,3300 in cubic centimeter cellophane. So you get a detection limit, 3,300. Now if this field of view happened to be larger because he had a different IP set, then he would have had a different detection limit because he would have had a different area. Or if he had done side by side views. What seems to be at least part of the issue is whether you can detect down to a thousand defects 10 to the 3 to the third. Is that below the normal detection level? I think the detection level will depend on the field of view of your microscope, the time period on which you've etched the cellophane and how deep it etches. I suspect that 15 microns is about standard for the etched depth and for the field of view of the microscope. I suspect that the field of view that was in his microscope is about standard. I know that Dr. Adonison at the A13928 paragraph 18, she's skilling the art. She testified that she was aware of his detection limit and that she had detected defects in a detection limit at or below 1000. So it's not something that was... Where did she testify that? In paragraph 18 of her declaration. Based on her appendix number A13928, please. This is Anna Adonison, which expert was this again? This was an expert for Sinto. Which what's the name? This is the point you know, your reply brief, correct? Yes, sir. Was this brought to the attention of the District Court judge, this Adonison testimony? Yes, sir. Can we... is there a place in the record where we can see that it was brought to the District Court's attention? I did certainly for that to you, I have a argument I don't know that and do it standing. It's a point, so maybe on the bottle, if you're kind. But it would be helpful to know that. Because I did see that in your reply brief and it's a pertinent point but I wasn't having seen it there. I think the first time I thought went off, perhaps incorrectly as to whether it was raised below. This is the paragraph 18 of her declaration. Yes, sir. Well, what did she mean by the same or similar methods? I would assume she's here to say, go ahead, say, go ahead and say, that's how they do the ethical and the tasks. Yes, but this is a trial for us. We can't assume that. That's what we've got. How do we know that she's talking about the same methodology that your expert reported to you? In her papers, which you've been to witness prior to this case, she regularly reports on FPD defects. And the test that you do for the FPD defect is the sick election followed by a microscopic examination. It's in all of them. In many of her papers, the FPD test. It's just like we have in this case, what was this gentleman's name? I've had problems pronouncing it both in and out of court. What's his name? Mr. Meal's start now. For purposes of this question of whether or not his testimony was incorrectly excluded, what are the, we have in here an expert report. And then there's I think six separate declarations. What are the critical documents in terms of the report and the declarations that, in your view, establish the error in the test. And then the court judges exclusion of his testimony. The second declaration is directed to the publications that show that this was all established in the art. So you'd say first of all you will lie on the second declaration. Yes, Your Honor. Okay. And then what I would rely on for the Axial Cemetery is the misdiagnote at A01283. When he measured, it would be in the density. A0, what now? A01283. A0128, okay. What you'll see there is that the wayfers had 80 millimeters of vacancy dominant of Lomber-free Silicon from the center measured out radiating. So whether you took a strip, correct? A strip, right. So when you're measuring a circle, not only the measure the radius wants to know the diameter of the circle, what he found is that there were 80 millimeters in the radial direction at minimum for each of the wayfers and the furt and one of the groups. And what you were referring to for Ms. Dr. Idensen, is that her name? Yes. Was she, in your view, was she purportly speaking to the validity of this method of testing? No, no, no. What was she speaking to? When Dr. Idensen spoke, she was talking about the detachment on it. Oh, for the dormant. All right. Where does Mule Stagno say that this microscopic approach that he's using is standard industry practice? Will you be in this separation? Is there a fourth separation? They never are posed, and that's why we're going to go into the declaration of what they think. That's a motion. Yeah, but I just want to see exactly what you're saying. I will find that for you to give to you about it. So right now, what you're saying, this turns is that you rely on the second declaration, his testimony at A1238, and you noted another declaration. What I was going to at the A1287 was to point out the fact that the act on the axis symmetry point is that there were 80 millimeters of rather material, or at a window of 15 improvement, or a frontman. So whether a wobble is a little, you lose a few millimeters on the axis symmetry question. It doesn't matter because we can readily find it both at the center of the way for him. I understand. What I'm concerned about is this question of excluding his testimony, because it does seem to color the case. It's obviously a better case for you if he's in instead of out. Yes, right. And you said you rely on the second declaration, and what else do you rely on that you say supports the proposition that he should have been allowed to stay in. In other words, that he gets over the Dalbert hurdle. I would say his third declaration talked about the rational practice. His fourth and fifth cover of the cover of the detection one, his number of declaration cover the call author paper, where they use his identical methods to. Present evidence to the world that their way forward have parapsychism. And you're saying this I'll close it out because you I don't want to hold you into your rebuttal. But you're saying that what you've just cited to us establishes that he met the Dalbert standard. And I would amend that perhaps in my book. Well, you had a number of questions. So we'll give you your full four minutes on rebuttal. And on rebuttal, let's talk a little bit about the enablement issue. Thank you. All right. We'll hear from I guess it's a simco, right? It is now you're Mr. Raider. Yes, sir. May I please support Terry Raider, for any of the at least. Here your cross appeals and property. Your cross appeals improper, isn't it? Your honor, it was it was a conditional cross appeal. We've held that if all you're doing is supporting the judgment, it's not a proper cross appeal. You aware of those cases? We were we were concerned that that are you aware of the case? Yes. Then why did you file a cross appeal? You realize that's potentially sanctionable counter? Well, we thought of your honor because we truly believe that the rulings that the judge made in connection with infringement or not infringement. But what's that have to do with it? If all you're doing is supporting the judgment, you got to you got a decision from the judge in validity. And you're supporting that judgment on a different grant. He gave it to you on lack of enablement. You're supporting it on the ground with obvious answers or anticipation. What's the basis for filing cross appeal? Well, you're under the testing that we just discussed. And the prior art is the same test. So that's not the answer. It's the legal question. When you're not seeking to expand the judgment, you are not entitled to file a cross appeal. In fact, we've said filing cross appeal and getting extra pages under those circumstances, sanctionable counter. What's your basis for filing the cross appeal? Our basis, Your Honor, was the good faith belief that we had a position on the cross appeal if this court reversed the federal trial. But that has nothing to do with expanding the judgment. The cross appeal doesn't affect the scope of the judgment. Your Honor, if we aired, we apologize. But we really had a good faith belief even in view of the cases this court has had on cross appeal. I don't see how you could possibly have a good faith for it. We've decided this exact question several times and said, you know, entitled the file a cross appeal under those circumstances. In this particular case, Your Honor, we felt that it was appropriate. What happens to the cross appeal if we affirm some re-judgment on infringement? We've agreed that the prior art under those circumstances would not be anticipatory. Because of the fact that as we were just discussing a few months ago, the law courts evidentiary ruling on testing was such that we believe that there is no abusive discretion by the district court. In fact, no error has been raised by the MIMC to the contrary. What MIMC is presenting in this appeal is identical to the same arguments that it made to the law court. And with respect to the microscope issue, the microscope issue relates to surface testing, not to volumetric testing. And as Judge Armstrong pointed out, at page 20 of her opinion, the issue of the microscope was something as with everything else that MIMC had presented, that Mule Stagno completely unsupports and has an unscientific explanation that he performed many more views. And this is exactly the type of imprint precise and unscientific testimony that is in a mis-advanced order. So we felt that the issue that the court addressed and axial symmetry was the other issue, the BMD test. If we go on to Acts of symmetry, what's your response to their reliance on your expert as saying that this method of testing for these defects is the same that's known in the industry? Well, you're on this sort of goes back to what we were just talking about. Dr. Eidson was testifying about invalidity when she made those statements. And she was testifying about invalidities based on her own publications, which show these areas of regions called LTCs. And as the court probably knows, in the case of MIMC, they disavowed on the issue of enablement. And they disavowed that LBAN was an axially symmetric region, which had were vacancies with the predominant intrinsic point defect and substantially less than 1000 obliterated vacancies. What is she talking about the same testing method that Mule Stagno used? No, she's not. She's talking about the same testing method that Mule Stagno used. She listed the test that she used when we've identified them in our own briefing material. And she did not use the microscopic test that's referred to. What did she use? She used different types of tests. I think she even used a gold etching kind of test as well as copper decoration and some of the other tests. But what we found from this in Judge Armstrong agreed. She kept looking from March of 2004 when she first told MIMC they had deficiencies in their testing that you can't take a sliver from one quarter of a wafer. And use that sliver with this BMD test and characterize the entire surface of the wafer as being either axially symmetric with respect to the vacancy area or with the same test. We're not talking about axially symmetric now. We're talking about the adorameration, the number of defects that are counted, which seems to be what your witness is addressing in her testimony. And the key question here is whether Mule Stagno was using the same test that she says is a standard test. She wasn't using the same test that he's talking about. And he never established that it was a standard test. There's no evidence that it's a standard test used by anyone to test for the claim characteristics. What Dr. Eiderson was talking about was she was using, and we have this on page 11 of our brief, she used selective etching, copper decoration, gold diffusion, and heat treatments combined with x-ray topography. That is not the same as where you read it from. That's from the record. It's one for seven, three now. Mr. Raider, before you run out of time, the way Mr. Evans did, could we talk just for a minute about enablement? I realize that the witness problem is here also, but I'm having a problem with the enablement issue. Can I ask you a question about it? Yes. The trial judge correctly references in Ray Wands and sets out more or less the seven factors that we've described in in Ray Wands as being relevant to the question of whether undue experimentation would be required. Yes. The trial judge dealt with that on summary judgment. My question to you is, what happened to the enablement is a question of law with underlying facts. Is that correct? Well, your honor if I could address this. Is that the proper statement of the rule? I mean, would you agree that's the rule? I would agree that certainly enablement, the ultimate conclusion of nameless matter, law, underlying facts. The seven factors that in Ray Wands describe, Wands describe basically factual inquires. And judge on strong made factual inquires under every one of those factors? Well, that's the problem. She did it on summary judgment. Nowhere in her opinion could I find her ever saying no reasonable jury could find the facts other than the way she found them. I thought there was a request for a jury trial, wasn't there? There was in the written. And aren't they entitled to a jury trial on genuine material issues, genuine issues of material fact that we're in dispute? We don't believe so, your honor, because of the jury trial. You're not entitled to a jury trial on genuine issues of fact that are in dispute? Well, there aren't any genuine issues of fact in dispute. That's the reason she was able to grant some judgment. But it doesn't you agree that she made a mistake in requiring collaboration of the evidence to support the patent? There's no requirement that the patent team supporting a patent have a corroborated evidence, is that? Well, there is in the case where we have their use of that to support the label. Here, the label, but that has to be the case. Now, that has to be the case that they suggested that when a patent team is providing evidence to support the validity of a patent that that evidence is rejected and must corroborate, what case says that? That's, I agree. That case does not exist. So, she made a mistake. I don't think so, because she made findings relating to the undisputed. No, no, on this point, on the corroboration requirement, she made a mistake, right? I would not agree that she made a mistake. The answer is yes, she clearly made a mistake, but your answer is it's not relevant to the outcome. And it's not relevant to the outcome. Now, go back to my question, which is how could she decide all these factual issues and never say no reasonable jury could have come out this way, and therefore I'm giving some re-judgment? Because all those factual issues as to whether undue experimentation were required, or what this whole argument was all about. The question was whether the patent was sufficiently clear about what how you do the hot zones, in fact you do all the rest of it, wasn't it? When that would all this argument was over? But on the evidence that the forehead, it looked at the unobjected two declarations in three experts, Park, Wounds, United City. That's not the question. The question is not whether you put in evidence that was fortifying the lack of a neighbor, but the question is, is there a genuine issue? And there's evidence on the other side, isn't there? There's no evidence on the other side that there's a genuine issue with her effect. We have a very cool disclosure in the patent, and there was testimony about the adequacy of that disclosure. That testimony was not reliable because when it came to the actual issue of a enablement runner, they only relied upon this, that one document, which is a very passing casual reference to L band. I don't understand what you're talking about. There's declarations from both inventors saying that the hot zone problem could be solved using knowledge of those skilled in the art without undue experimentation, right? Look at the Park patent, also. The Park patent has a substantially greater amount of detail, plus the Park patent is directed to the method of not to a product. This case is very similar to the work before you go away. Isn't there testimony from the inventors here that the hot zone problem could be solved without undue experimentation? But that's testimony from the inventors without any support from the disclosure. Well, that's the point. You're saying there has to be some sort of corroboration. They say that the disclosure is sufficient to enable one skilled in the art to do this without undue experimentation. That's coniferious, isn't it? And they so testify, right? They did so testify, but the fact is... I certainly couldn't, but I'm not one skilled in that art. Could read that patent and figure out how to do this in a way that you get below 1000 defects or what the rest of that. You say your experts say no, it can't be done. Their experts say, oh yes, all you have to do is tweak the hot zone and have a little of this, a little insulation, and do a few things. And it'll vary from manufactured to manufactured depending on how they do it. They have all that in there. And I can't find perhaps I missed it. Can you help me find in the trial judges otherwise? Excellent opinion. Where she says, ha, these facts are not genuinely in dispute. And no reasonable jury could have said so. Those private precise words, especially the last few words about the jury, I agree. But if I would refer you to page 27 or opinion, 87, she talks about that again, if you may have been mistaken or referring to it as robbery, you have an answer. But the fact is, this is the only evidence that MEMC has on the issue of the name. The patent itself creates a presumption of validity. Which can be rebutted, obviously, if there is a situation like we have here where when tested, they relied upon only the only. So the judge accurately and correctly found, even if she didn't use precise words, she failed the judgment. I can tell you, anyone issues a fact. But those precise words are critical to her ability to give some reject. And she has got to tell us that she has sufficient grounds say that I don't have to go to a jury on these disputed facts because no reasonable jury could have found for these people. I think the judge plays you correctly. And I'll just add that I find it very difficult. I'm having a hard time being comfortable with the grant of summary judgment on the enablement issue. When you stack up on one side, your experts. And on the other side, the disclosure in the patent, the park patent, which doesn't talk about a process but talks a lot about the development of the hot zone. And then also to what Judge Diplos is referring, the declarations. You may very well win, I don't know, on a trial. But I don't see how anybody can say they're not genuine issues of material fact on the enablement issue. Well, Your Honor, I think that Judge Ernst Strong did an exceptional job, an extraordinary job of going through the record of very counter-truck record. We should try to be heard in the fact finding maybe and saying who's credible and who's not. I think that she did exactly what this report judge should do in connection with being presented with opposing sets of positions and looking at it and determining on the basis of that record. Whether there was a genuine issue of fact on the issue that she was picking at the same time. Let me ask you, Mr. Goin back to the matter we were discussing earlier about the exclusion of Mr. Mielstanoz by Senator Mielstagnos testimony. Dr. Idenzone, I guess your expert said that I am familiar with the detection limits that are described in the 302 patent. We used the same or similar methods for evaluating the 1986 crystal that we had created. We used a detection limit that was no higher than 10 cubed defects and so forth. And I think you pointed out that's a 13,928 at paragraph 18. I mean, doesn't that buttress? Why does that not buttress his credibility? Not his credibility, but buttress, his at least being allowed to appear not being knocked out on a dull their basis. Well, because the testimony has to be both reliable and after fit the situation, there is no scientific, a judge aren't strong asked them to come forward with a scientific document that would show that there is any standard test for axial symmetry, any standard test for detecting... What's the type of deglamoration issue here? Less than 1000 defects per cubic centimeter. There is no standard test for determining the defects. There is no test for determining defects in less than 1000 defects. They were given two years to find a scientific document between 2004 and 2006 when she made her rule. What are your quality control records mean when they say that they're defect-free? I'm very troubled by the fact that you apparently didn't produce a witness who was knowledgeable about those records and able to testify as to what they meant. Those defects, those records do not mean that they can testify. Why did you produce a witness to testify about the records? Because the testimony was given that if it said zero defects, that was only a pursuant to the test that Mule Stagnol had done which we had already established could not detect down to the sensitivity of less than 1000 defects. It's testimony that your quality control used the same test that he used. No, no, there's no test for that. What test did they use? Did your witnesses testify as to what your quality control records meant? These were not tests that were done at our client. No, that's not my question. You have quality control records which say that this material is free of arm-righted defects, right? No. No, there's no testing other than for deep defects and that the defect which is for COPs only not for a glomerated oxygen-pound plexus that we refer to and which bach-rightened was referring to as LDC. There's no testing for that down in the industry. There is testing done for deep defects in the testing of the test. Is there testing in the industry done for that purpose? That's the problem, Your Honor. The testing is not done for the words vacancy, glomerated vacancy and transit point defense. It's for bachs which are COPs. Are they the same? No, they're not the same. Mr. Raider, I just, since you're about to run out of time or already have, I just want you to understand, don't misunderstand my question to you. Had this been a trial, she might very well have come out with the right answers. The question is, are they entitled to a trial? And if they're entitled to a trial, are they entitled to a jury on the fact issues? That's what's puzzling. Well, I think this is the problem, Your Honor, because of the issue that this court is looking at, probably one of the best reasons most detailed and very consistent with this federal circuit principles. I love her opinion. I appreciate she didn't try the case. She didn't have any points, but she, I think she concluded, she may not have added the additional words, no reason of the jury, but it's very clear if you read through her opinion. And her judgment, which I understand this court clearly is more interested in the judgment whether it's correct. And the fact is, she determined in her own mind and through the opinion she wrote that there were no genuine issues. And she can grant some of her judgment, basically. Thank you, Mr. Ray. We'll hear from Mr. Ray. Mr. Ray, let me figure out here so that everybody gets the same amount of time. Yes, sir. Let's see, correct me. Your count comes up wrong. Mr. Raider had six extra minutes, okay? So that takes him up to 21 minutes, right? Yes, sir. Okay. You went over by about two minutes into your four minutes, okay? So that takes, so that took you up to 17, okay? So why don't we give you, we'll give you a full five minutes. Is that about right? Thank you. You should have heard of that. I love it. I hope that's about equal. So, and if it isn't, there's nothing you can do about it. Mr. Benjamin, if you could give, I'll accept that. Give Mr. Evans a full one. I'm trying to make it equal serving as a same amount. I think that's about right. Are you comfortable with that, Mr. Ray? Yes, sir. Okay. If I could address them, Washington's on the table first. In her opinion, at 141, A0081, she expressly discussed, I think since, used somebody's lower detection limit. So, not only to call for judges attention, but she also discussed it in her opinion. Now, where's that again, Mr.? In page 41 of her opinion, it lines 1718 down to 24. And this is you're saying she's focusing in on what we discussed that was the joint appendix 13,928. Yes, we're back right in the tent. I mentioned that she had used lower detection limits. You asked earlier about where to doctor Moustaglo, explain the world's heart support. Which issue, would you help me? Which issue, are you addressing the accessibility of the expert witness? You're back to that. Where's the ability of an attachable under the doctor Moustaglo's reliability for going down to 1.30 or... An eglomeration. Yes. Save a minute of your rebuttal time to talk about enablement, which you never mentioned in your opening argument. I will. That page would be at A, 17,032. Here, there are three there. 17,532. Yes. Over 17,033. There's a paragraph three there that explains in detail. I'll be implemented. I'll be the standard. And I believe when a patty is there, I'm like, a powder for it. The next deployment test, this is mechanical, is defense per unit volume, that you don't have a situation where you need to go outside to a publication. If he says four gallons of chemical per ten gallons of water, where does that say that this is a standard in the industry? It does say the standard of industry could have defined it in the definition of a patent. There's a special section of the back of the patent. Or it gave a definition of a section. Oh wait, you're looking back in the patent now? Yes, with the patent defined, what it means to be a suggestion free of language defense. And I'm looking at column 15. column 15, line 47. It's a densely free of agglomerated intrinsic point defects. Chalmina concentration of agglomerated defects, which is less than the detection limit of these defects, which is currently about ten to the third defects per centimeter cubed. But it doesn't tell you how to determine the number of defects. The patent does them, right? The patent tells you that you could detect defects. It doesn't tell you what method is a reliable method to use for that purpose. But it identifies the... Correct. Yes, right? Yes, it does not tell. I think it does though, you honor. Because it identifies an FPD as an agglomerated defect. It's an agglomerated defense and defects come with multiple names for the same thing, which is what we do is confusion. A D defect is a COP, is an SPD, is a void. And the reason the patent uses agglomerated defect is so we have one word for all of them. Okay, well, where does it tell me... Where does it tell me what method is to be used to test for that? And how do I know that's the same method that Mule's stagnant? Because an SPD stands for flow, pattern, defect. And the reason it's called that is because when the sake of watching etches into the silicon, it forms a gas bubble. And that creates a flow pattern. Okay, so I understand that. And the question is, is there a standard methodology for measuring this that everybody would know? Is a standard 30-minute estuary, does a standard look at it on the microscope? And when you calculate the judgment... What does the patent refer to looking at it under the microscope? It's understood when you say FPD, you have to look at it on the microscope because it's too small to see if the negai. Well, it says FPD means you have to etch it. That gives you the gas bubble, you use the flow pattern. But you can't see those. Yeah, I understand it. But he said that he had to make these multiple passes. And my understanding of what the district court said was that this multiple pass approach has not shown to be reliable or to use in the industry, right? He depends on the field of view of your microscope. How much still can you look at it? Well, we never really got into that issue. I tried to introduce it earlier. I'm asking that the debate be cause as near as I read the record, there is no standard methodology for getting down to 10 to the third defect measurement. He explains it by saying, well, if I look at three slices, I go from 3300 to something like 1100, which is substantially the same as 1000, right? And now what he says, I can't make sense out of that. It makes no sense to me to say your methodology leads you to 3300 as the closest level you can detect. But if you look at three pieces of 3300, suddenly you're seeing 1100. Explain that to me. It's defects per unit volume. What the 3300 comes from is that through a 50-power microscope, you will be analyzing silicon that has been etched. And the volume of the silicon that's been etched is 133,000 or 13300 of a cubic centimeter of silicon. It's a volume test. And so what's happened is if you look through just one field of view, you need to look through 3300 views, the 50-power to look at a full cubic centimeter. So if you don't see any flow patterns and just one view, the other 2,999 might have a flow pattern. So you can't say it's zero. You can only say it's zero accurate to 3300 per cubic centimeter. That's where it came from. He calculated that and showed that. And so if his field of view expands and he looks at more silicon, if he looks at something more, this is the 1,000th of a cubic centimeter. Then you can say zero. And I know there's not any in that one, but I don't know about the other 999th of a full cubic centimeter. Which is what the pattern is, what's the counter if he tells it? Why did he not have an outside expert testifying that the next time? I'm done. I didn't have an outside expert drawn because this is a very tight industry. There's only three, there's very four major patterns. We couldn't find it. This is an interesting witness who had the tools and the experience to do this. The expert with big news had 15 years of experience. And we didn't perceive this as being an issue that would be contest. Thank you, Mr. Evans. Thank you, Mr. Raider, the case is submitted. Thank you