Oh Oh Sorry There a food case this morning is number 15-1132 the Ohio Willowwood Company versus Alps South LLC Mr. Lukin Thank you, Your Honor. I think I'm going to reserve three minutes of a rebuttal time. This case is back for the court following a trial on the inequitable conduct question based on this court's original decision in this case reversing the summary judgment. This court found in the first appeal that the district court's judgment that nothing that was withheld from the court's focus on with respect to the second reexam the letters and why the district court's finding of an equitable conduct with respect to the disclosure of the letters wasn't correct. The letters or the deviation where the second reexam is initiated specifically relying on the Compass testimony and the Comfort Zone ad. The examiner finds the patents invalid based on the ad and the Compass testimony and then you convince the board to reverse and set aside the rejection and determine patentability based on the fact that the Compass testimony wasn't corroborated. Yes. And the argument is that the letters corroborate I don't suppose you're disputing that are you. Actually in the secondary exam, yes, Your Honor, the letters there's a pair of letters and a pair of attachments. The attachments were submitted one in the first reexam one in the secondary exam. So the issue becomes what the cover letter said. The secondary exam as your Honor noted was about the SSGL Comfort Zone ad and the competitor that's at issue here silo sheet made two separate lines of products. There's a lot of other silipose. I'm sorry two separate lines of products. There's the silo sheet, which was the subject of the first reexam. The letters both made it perfectly clear that the letter in the attachment were about the silo sheet, not the SSGL, so that the application that was attached and closed with the First Amendment or with the first letter and the application, the abandoned application was of record. All that providing the letter in addition would have done is make it even more clear that it not only wasn't but for material. It wasn't even material because the application and the letter referred to the silo sheet that was in the first reexam. Why isn't it fair to get well, I'm sorry. I cut you off. I was going to say your Honor, I'm probably going to write where you pivoted me. The secondary exam, because the printed publication ad issue there was clearly the SSGL, not the publications about the silo sheet, so the question of corroboration went to Mr. Contessa's statements that the SSGL was on sale by the critical day and evidence about the silo sheet was not relevant to that, and I think that was clear in the board's decision. Why is it not the case that the evidence suggests that the single socket gel liner, the SSGL, is among the product lines for the silo sheet line? Well, there's one of the ads, the one at 6246, specifically has the picture of the product, identifies it, comfort zone single socket gel liner, and then down towards the bottom says silo sheet product line. It sounds like it's saying that this is one in the silo sheet product line
. It suggests that the silo sheet and the SSGL could be seen as part of the same product line. That's a pretty important point, isn't it? Your Honor, I don't think so. Well, you just said that silo sheet and SSGL were clearly distinct. Yes. This suggests the contrary to that. So if it is true that they're not really distinct in that silo sheet is a description of a product line that includes SSGL, then the letters certainly take on a more important. Now, Mr. Comtess' testimony that is to be corroborated or not is not about, for, in the second reexam, is clearly not about the entire silo sheet line. No, no, maybe not the entire line, but the question is, is he, when he says that in the silo sheet line we have products that have gel on only one side. The ad says the SSGL is in the silo sheet line. Right. Mr. Comtess' declaration, which is very thin, but his deposition testimony, which is repeated in more paragraphs, talks not about the entire line. He talks about the SSGL. He doesn't have to be true of the entire line. No, your honor. The point is some SSGL can be read as silo sheet, not all silo sheet through SSGL. In the second reexam, they are in the silo sheet. You have the letters, which talk about the silo sheet product line, as having this avoidance of bleed through. And then you have Comtess saying that yes, that's what the comfort zone ad discloses with respect to the SSGL. He doesn't suggest that all four pickup trucks don't have bleed through. He doesn't make any difference. He's what he's talking about before. But the ad, according to what the petitioner said in the reexam and according to what the reexaminer found to make this invalidating or rendering non-patentable, is that one skilled in the art would have recognized this as a single-socket gel liner, that this is an SSGL, not anything else in the silo sheet line. Those were dealt with previously
. This is an SSGL. That is the basis of the examiner beginning, the reexam that is the basis of his finding that it wasn't patentable because the SSGL, that specific model, if you will, is the one he is aware and the board is aware that in the prior exam, the silo sheets, the rest of that line, once it were made. I'm really not following you. You have Comtess saying that one product here at least avoids the bleed through. And he talks about that being shown in the Comfort Zone ad. And then you have a letter which says, yes, within this line, we did hit the, there were products that, the way to the bleed through. Why isn't that direct corroboration of what he said? Because they are separate and I apologize that I'm not being clear. The other silo sheets, the core silo sheet line has a, has a fabric of nylon that allows bleed through. And the nylon product is the product that Mr., that the letters are addressing. That's not true. He talks about the product line. He doesn't talk about one single product. He talks about, he talks about, I think the attachment in the, in the first one, the first letter that has the application makes it clear that it is nylon, not coolmax, that they're using. And thus that, that, and he also doesn't talk about the entire silo sheet line. He talks about the silo sheet in particular. His first letter with the application talks about a particular silo sheet product. And the application talks about nylon. The critical part of the SSGL model or specific product or skew, if you will, is that it had coolmax. So that the nylon silo sheets, which are the ones that were sold under the name, silo sheet, not SSGL, the nylon silo sheets were the first, for example, the distinguishing characteristic about the particular SSGL version of these, the SSGL product, even if they call it part of the line, is that it has coolmax, which is a thicker fabric, and therefore there cannot be bleed through. And therefore one would take this ad, which purportedly is a picture of an SSGL, not the silo sheets that were in the first case in the first, for example, and says that is not susceptible to the problems that were discussed, that, that, that allowed patentability in the first case. So I suppose we go ahead, basically. I was going to move on if you had another question. Well, I do have another question. And so Mr
. Scalice, then what you're saying is Mr. Scalice is mistaken, terribly speaking, to saying that the silo sheet items that he's referring to in his letter, or the first of the letters, did not have bleed through. You think that's the way one should read this letter? That is definitely. He is the scribe. He is wrong. He is, and my point, so plainly wrong, that it wasn't even worth bringing this to the attention of the PTO. As a potential, particularly, as potential corroboration of contest. It is clear that he is talking, yes, he is talking about the original nylon silo sheet, not the Coolmax SSGL, which is in the second example. And you had been arguing this case before the board, and you had this in your brief case, and you knew about it, and you were intending to argue that the contest declaration was wholly uncorroborated. Don't you think you would have to feel an obligation to say, now, of course, there is this letter from Scalice, but we think Scalice is mistaken and here is why. Your Honor, I may well have a more cautious approach than Council had in this case, but I don't know that one can say that he omitted a material reference and that he did it with deceptive intent. It's strong to say that this is uncorroborated if you have something in which somebody is saying, whether you believe it or not, it's exactly the contrary of what you're saying is the fact. Your Honor, I've been addressing largely materiality. The record is far from clear that Council Gion was aware of the letter. We're talking about Calvin here in light of the findings that are made by the... Well, it was clearly... Well, it was clearly... .
..Colvin was clearly aware of the letter. Right? He testified that he was aware of the first. The second, I don't think he was actually asked about. But he was... Remember, these are 1999 letters that are now becoming material or not material. So what's... So we reject your argument about the letter to be corroborated. And we conclude that they're clearly corroborated. Let's just assume that as a hypothetical. What argument do you have to set aside the district court's conclusion of an equitable conduct with respect to the second reexam in the letters? And the letters. It would be... It would parallel the argument we make about the declarations, but it would be even more powerful your Honor, because you've got... I mean, this is a litigation in which there are thousands and thousands and thousands of pages that the district court is assuming that Mr. Colvin reads and retains almost like a computer. So you've got letters. You've got letters that are
... Unlike the declarations where he said he didn't read it. The letters. So what's the other... Well, his testimony about the letters was that he was... That the second letter went straight from Silipost to outside counsel. And I don't think the record is at all clear that Mr. Colvin definitely ever saw the second letter. The first letter was sent to his boss, Mr. Arbergass, and I think his testimony was... The equivalent, I'm not quoting, was it must have come through me. But it was still a 1999 letter, and we are now... We're through the 2004 original allowance. We're through the 2006 summary judgment motion. We're in the second reexam and a non-lawyer is sitting back there. He had forgotten about the letters
. It's not clear. He never got to that. He wasn't asked, but there was. He never asked. I don't think the record is clear whether he recalled it. I think the testimony, Your Honor, was that he thinks... He knew he was originally aware of the letter to Mr. Arbergass's boss. I don't think the record is clear one way or another as to whether he remembered it in sufficient details and know anything about it in 2011, 12 years later during the second reexam. I want some discussion of the courts, finding an inconceivable ability as to Colvin's knowledge of the 2006 exhibits, because I'm going to ask your opposing counsel about it, and I want you to discuss more. Your Honor, and those to get to intent or to get to any of the Theresan steps, He has to put it... The District Court has to put it in Mr. Colvin's hands. He has to have Mr. Colvin read it. He has to have Mr. Colvin remember it five years later, realize its material and then make it as his hands. And inconceivable. And the only thing the judge that the District Court found was that the protective order did not preclude counsel giving it to him, although it doesn't compel them to, it just doesn't preclude it, and that since he was, in effect, the interface with the company with the lawyers, that he would have wanted to see everything in the litigation, and therefore he would have seen this. But they filed all of this under seal in a multi-volume thing that was about that. And I'm sorry, Your Honor
. I'm aware of the record. Yes. And there is no testimony regardless of whether the Court disbelieved both Mr. Colvin, who was only reciting what he had been told the protective order said. He was not purporting to recite it because he never read it. And the Court disbelieves both of his counsel about what the protective order did or did not permit them to do, like the Court's decisions in Star Scientific and the other cases, that doesn't lead to an inference the other way or the permitting an inference the other way without more proof that counsel actually did split this thing up and determined what they could provide to him and what they didn't. And as a matter of fact, it is entirely reasonable, I submit, for counsel, to be a little trepidaceous or whatever the right adjective would be about doing the approach it with trepidaceous to do that, because in 2012, a year after these events, when these vary 2006, If we believe that the Court, District Court area, as to his finding of actual knowledge on the part of Mr. Colvin, as to that 2006 material, but we take the letters as material and he said he knew about them. Well, you're honor then, I have to go back and address those letters. And because I understand that the District Court found on the basis of the letters and the declarations. And the declarations are enough to sustain the judge, right? That's my question. If the Court found that they were, in fact, but for material, and the Court found that Mr. Colvin, despite any finding of record, that Mr. Colvin remembered them in such specificity and that Mr. Colvin, a non-lawyer, understood that they were material. And the materiality that the Court, it gets pretty subtle here. That's enough to sustain the judgment. Well, and that he decided with specific intent to deceive. That's enough to sustain the judgment. Well, if we get all the steps of Theresecensor Met Your Honor, yes, it sustains, I believe it would. But here, it's not, and I'll start backwards with the ultimate intent to deceive. These documents were in their summer re-judgment motion. If he knows all these things. It sounds to me as though you're saying that absent a confession by the party's representative that it's, you can't show an accurate comment. No, Your Honor, I would suggest the Court's eventous decision is the classic case of what kind of evidence you actually need
. I mean, that's one where the defendant denied receiving it and said, I got the later version of it. And in fact, they did find not a confession. I acknowledge you're not going to get a confession. But in discovery, they did find that the defendant had received the earlier version because he approved it for publication. He also denied knowledge of materiality of a reference because he said, well, that reference talks about certain tests. And when we did the tests, they failed. And there was extrinsic evidence that some of the tests had passed. So his basis for saying, I didn't get that or I didn't remember it or I didn't understand it, was baseless. It wasn't baseless. It was credible. It just wasn't permissible. It wasn't the single most reasonable inference. And it didn't permit an inference of deceptive intent. It didn't. It wasn't enough to assume the opposite once you've discredit his testimony. And here, Mr. Colvin repeatedly explained his understanding. There's more to it than just disbelieving his testimony because he also admitted that he was primarily responsible for supervising litigation. Well, you're honor. I compare it to the Star Scientific decision when you're talking about the people who were responsible for firing counsel. They clearly had authority to do it. So they were motivated to know what was going on too. I mean, he was the interface, but he's not a lawyer. I mean, they're brief talking about all the litigation. This isn't the only case that was going on
. We are on the other side of a number of cases that have been here before, that they're bringing. Mr. Colvin in his part time side job is basically handling interface with the lawyers. But the materiality issue here from his knowledge and materiality, his understanding of materiality and a reexamts as a printed publication. And it's pretty nuanced to the lawyers as to how when his lawyer stands up and starts talking about contests, that puts on sale information that contests has said or that my corroborate contests that would normally be outside of reexamts. I mean, we're down into. We're well over time, so I apologize. We'll give you three minutes for a bottle here. Mr. Chris Colvin. Yes, sir. Please. I'm Mr. Ron Christalty. I'm returning with a law firm of Shemaker, Lupin Kendrick, and I have the pleasure of representing the defendant cross-spellant Alps South L.C. Your honor, I'm here today as an officer of the court, not just to represent my clients, but also because I have myself lived these cases for 11 years. And feel that the pattern of activity that Ohio will, what has engaged in during the course of these cases without full rebuke, runs the risk of degrading the integrity of both the patent system. No, we're probably not going to be able to rescue the integrity of the patent system or further degraded by any single decision in this case. Why don't you get to the nitty gritty here? Yes, sir. The first question that one that Judge Wallach raised, I'm interested in hearing your response, as to why it is that given the fact that Mr. Colvin does not acknowledge and there's no other direct evidence of his knowledge of the 2006 SSGL exhibits. Why it is that that part of the district court's judgment is not reversible? Yes, Your Honor. This is from the record. It's Mr
. Colvin's testimony. It's a JA-012375. The questions asked, Mr. Colvin, for instance, were you responsible for all intellectual property matters at Ohio Willowood? Answer yes, were you responsible for overseeing patent prosecutions? Yes. Were you responsible for the Connie of patents? That's all the patents, the family of patents that sued Connie of being the inventor. His response was, I was responsible for overseeing them, yes. Question, were you responsible for supervising all intellectual property litigation at Ohio Willowood? The response was yes. Were you responsible for the reexamination proceedings involving Ohio Willowood and its patents? The answer was, I was responsible for overseeing them. Mr. Colvin is not a person who, as the briefing indicates, is just an engineer who happened to be answering a question or two questions. No, he testified that he did not sign the protective order that the appendix in which this material appeared was sealed in court proceedings. And there was other testimony that the appendix was never broken up so that the protected material was never segregated from the material that was not designated for attorney's eyes only. Testimony, both of his testimony and that of Mr. Speed, I think it was, was that he never saw it. And it worked. The standard is actual knowledge. Yes sir. The trial court uses a standard of inconceivable ability. Yes sir, you are. Clearly the trial court is irritated. Yes sir, I think one very important point is the two Scalice letters were items that were produced by Ohio Willowood and this is a... We're talking about the Scalice letter right now. We're talking about the 2006 SSGL exhibits, right? These are the Scalice letters weren't in the, the word at least exclusively in the summary judgment attachments. These declarations were in the summary judgment attachments which were sealed. Now why, how can we get from the evidence we have to support the district court's conclusion that Mr. Colvin has to be disbelieved and it said we have to substitute a finding that there was knowledge on Mr. Colvin's part of those exhibits. Yes sir, honours. I think the district court inferred that from all of the circumstantial evidence of the extensive involvement Mr. Colvin had not only in this litigation and other litigation. For instance, one of the declarations was a prostitutes named Mr. McLeaney, Jim McLeaney. There was an eventorship hearing in the 688 case that was, I believe, a four or five day for evidentiary hearing Mr. Colvin sat through that entire hearing. Mr. Colvin was extremely involved in all aspects of this litigation. This was the most important patent. It is that by far the single largest product for Ohio Willowood, the testimony is that during the penance of this case they made over $200 million selling this product. Was Ernie testimony that he reviewed other pleadings in the public litigation? I believe there was, Your Honor, so for instance he testified and I can cite the citation in the record is to J.A.12448. I say this not that good on this little pram, I'm sorry. 1, 2, 4, 4, 8, dash 55, where Mr. Colvin testified that he reviewed the Scalice letters and he testified that as part of the first year examination he reviewed them and they considered whether they should... But he didn't testify to review them as part of the litigation. And the point is that where he does say he reviewed it, the court has a basis for its determination
. These declarations were in the summary judgment attachments which were sealed. Now why, how can we get from the evidence we have to support the district court's conclusion that Mr. Colvin has to be disbelieved and it said we have to substitute a finding that there was knowledge on Mr. Colvin's part of those exhibits. Yes sir, honours. I think the district court inferred that from all of the circumstantial evidence of the extensive involvement Mr. Colvin had not only in this litigation and other litigation. For instance, one of the declarations was a prostitutes named Mr. McLeaney, Jim McLeaney. There was an eventorship hearing in the 688 case that was, I believe, a four or five day for evidentiary hearing Mr. Colvin sat through that entire hearing. Mr. Colvin was extremely involved in all aspects of this litigation. This was the most important patent. It is that by far the single largest product for Ohio Willowood, the testimony is that during the penance of this case they made over $200 million selling this product. Was Ernie testimony that he reviewed other pleadings in the public litigation? I believe there was, Your Honor, so for instance he testified and I can cite the citation in the record is to J.A.12448. I say this not that good on this little pram, I'm sorry. 1, 2, 4, 4, 8, dash 55, where Mr. Colvin testified that he reviewed the Scalice letters and he testified that as part of the first year examination he reviewed them and they considered whether they should... But he didn't testify to review them as part of the litigation. And the point is that where he does say he reviewed it, the court has a basis for its determination. But he says he did not review the 2006 exhibits. And yet the court simply says, well that's inconceivable. Again, I believe that given the totality of the evidence of his pervasive oversight and participation he was the sole person at Ohio Willowood who was managed. But what I was asking you is Ernie testimony that he routinely reviewed pleadings in the district court litigation. I don't believe that he there is testimony that he routinely reviewed pleadings, Your Honor. But for I believe that for Mr. Guyin to be going in arguing the lack of evidence and the fact that he would have not asked his own client, is there any other evidence out there? And the only person he would have asked the client is Mr. Colvin that question. It is inconceivable that a lawyer would go before a tribunal and make the assertion that no evidence exists without simply asking the question that a client, is there any other evidence? Are you aware of this? Is this correct? I'm going to go represent to the court. And Mr.... Make a mistake that Mr. Guyin's representations were very strong. This is a quote that appears at JAA009053. And this is before the Board of Patent Appeals. There is not a single piece of documentary evidence that shows a single socket gel liner and coolmax. He continues to argue quote, that's literally all they have in referring to the ad and the argument. It was inconceivable I believe for the district court that a lawyer would go before a tribunal and make such a strong argument about a void, a lack of evidence, without simply asking his client, is there anything else out there? Without asking his co-counsel has been litigating the case for eight or nine years. I'm going to go represent to the tribunal that there's nothing out there. And I think that the court found that Mr. Colvin's pervasive involvement in this litigation, Mr. Colvin knew and the record testified that he had a favorable impression of Mr. Galey and Mr
. But he says he did not review the 2006 exhibits. And yet the court simply says, well that's inconceivable. Again, I believe that given the totality of the evidence of his pervasive oversight and participation he was the sole person at Ohio Willowood who was managed. But what I was asking you is Ernie testimony that he routinely reviewed pleadings in the district court litigation. I don't believe that he there is testimony that he routinely reviewed pleadings, Your Honor. But for I believe that for Mr. Guyin to be going in arguing the lack of evidence and the fact that he would have not asked his own client, is there any other evidence out there? And the only person he would have asked the client is Mr. Colvin that question. It is inconceivable that a lawyer would go before a tribunal and make the assertion that no evidence exists without simply asking the question that a client, is there any other evidence? Are you aware of this? Is this correct? I'm going to go represent to the court. And Mr.... Make a mistake that Mr. Guyin's representations were very strong. This is a quote that appears at JAA009053. And this is before the Board of Patent Appeals. There is not a single piece of documentary evidence that shows a single socket gel liner and coolmax. He continues to argue quote, that's literally all they have in referring to the ad and the argument. It was inconceivable I believe for the district court that a lawyer would go before a tribunal and make such a strong argument about a void, a lack of evidence, without simply asking his client, is there anything else out there? Without asking his co-counsel has been litigating the case for eight or nine years. I'm going to go represent to the tribunal that there's nothing out there. And I think that the court found that Mr. Colvin's pervasive involvement in this litigation, Mr. Colvin knew and the record testified that he had a favorable impression of Mr. Galey and Mr. McLean. He knew them personally. Let me move you to the first reexam because that's part of your cross appeal argument here. Are you arguing that there was a misrepresentation in the course of the first reexam or just a lack of pander for failing to disclose things? It was a very affirmative misrepresentation. What was the misrepresentation? It starts with the premise that the issue in these cases, despite argument of counsel about the specific product. What specific statement was a misrepresentation? Sure, Your Honor. The specific statement, when they went into the interview and the interview was attended by Mr. Gayin and Mr. Stanley or Counsel Rohaiwilwood, Mr. Colvin, the inventor, Mr. Konya, and three examiners, and they specifically argued in the summary of argument in this case, it chronicles that that there was no prior art with gel in only one side of the fabric. This was an argument that they made pervasively throughout these cases and they made it. Where do we find the statement? If you bear with it, just one second for honor. Your Honor. I apologize. I don't have that specific citation, but I will tell the court is that it is in the summary of argument filed by Mr. Gayin immediately preceding the July 17, 2007 interview. I apologize. They don't have the difference. The reference to prior art there, where we aren't talking about the question of corroboration, which was the issue in the second reexamination, was a reference to prior art as that term is used in the context of reexamination, which would be either prior patents or pre-public evidence. So, some things like the scolise letters wouldn't be prior. That's a misproduct. I believe that's in miscarriage. I'm sorry. I believe that's a mischaracterization of the briefing of the opposing council that may have been a misunderstanding of Judge Frost in a reexamination proceeding in order to determine whether there's a substantial new question of patent ability in order to determine initial rejections
. McLean. He knew them personally. Let me move you to the first reexam because that's part of your cross appeal argument here. Are you arguing that there was a misrepresentation in the course of the first reexam or just a lack of pander for failing to disclose things? It was a very affirmative misrepresentation. What was the misrepresentation? It starts with the premise that the issue in these cases, despite argument of counsel about the specific product. What specific statement was a misrepresentation? Sure, Your Honor. The specific statement, when they went into the interview and the interview was attended by Mr. Gayin and Mr. Stanley or Counsel Rohaiwilwood, Mr. Colvin, the inventor, Mr. Konya, and three examiners, and they specifically argued in the summary of argument in this case, it chronicles that that there was no prior art with gel in only one side of the fabric. This was an argument that they made pervasively throughout these cases and they made it. Where do we find the statement? If you bear with it, just one second for honor. Your Honor. I apologize. I don't have that specific citation, but I will tell the court is that it is in the summary of argument filed by Mr. Gayin immediately preceding the July 17, 2007 interview. I apologize. They don't have the difference. The reference to prior art there, where we aren't talking about the question of corroboration, which was the issue in the second reexamination, was a reference to prior art as that term is used in the context of reexamination, which would be either prior patents or pre-public evidence. So, some things like the scolise letters wouldn't be prior. That's a misproduct. I believe that's in miscarriage. I'm sorry. I believe that's a mischaracterization of the briefing of the opposing council that may have been a misunderstanding of Judge Frost in a reexamination proceeding in order to determine whether there's a substantial new question of patent ability in order to determine initial rejections. You can only rely on publications of prior art. What the rule says, and I believe it's 1555, 37 CFR 1555. I'll tell you just a minute, but to finish my argumentation, your honor, what the rule says is that once a claim is rejected or amended, then 112 happens, and it's open to reexamination in the normal process you would have in a typical examination. So, if you were to amend the claim in a reexamination, it makes sense that the amendments, the new language is not based on just what the prior art publications and patents are. It goes into full prior art. In this case, though, in the first reexamination, the issue before the tribunal was whether or not there was a product with gel on both sides of it. They went in and affirmatively said, distinguished the prior art. No, I think you're mistating what was involved in the first reexamination. I thought the first reexamination was very solely on the silo sheet. The issue with respect to the silo sheet was whether prior art had gel on one side of the fabric. No, but it was confused. And you're going to have to show me that it was broader than the silo sheet, because that was my understanding is that that was the prior art, the physical silo sheet. The product before the court was the silo sheet, but I don't know that the patent office is not limited to a specific product. The issue that they went and argued as we overcome prior art, because we only have gel on one side of our fabric, knowing when they went in and they made that argument, Mr. Colton. Yes, Your Honor. I want to see where they set it and exactly what they set. Yes, Your Honor. And in the, of course, there's no transcript of the interview. There's a summary that's written afterward, and it was submitted by Mr. Guine. And in Mr. Guine's summary, it was written after the July 17, 2007 interview. Mr. Guine specifically said that all prior art had testimony at trial
. You can only rely on publications of prior art. What the rule says, and I believe it's 1555, 37 CFR 1555. I'll tell you just a minute, but to finish my argumentation, your honor, what the rule says is that once a claim is rejected or amended, then 112 happens, and it's open to reexamination in the normal process you would have in a typical examination. So, if you were to amend the claim in a reexamination, it makes sense that the amendments, the new language is not based on just what the prior art publications and patents are. It goes into full prior art. In this case, though, in the first reexamination, the issue before the tribunal was whether or not there was a product with gel on both sides of it. They went in and affirmatively said, distinguished the prior art. No, I think you're mistating what was involved in the first reexamination. I thought the first reexamination was very solely on the silo sheet. The issue with respect to the silo sheet was whether prior art had gel on one side of the fabric. No, but it was confused. And you're going to have to show me that it was broader than the silo sheet, because that was my understanding is that that was the prior art, the physical silo sheet. The product before the court was the silo sheet, but I don't know that the patent office is not limited to a specific product. The issue that they went and argued as we overcome prior art, because we only have gel on one side of our fabric, knowing when they went in and they made that argument, Mr. Colton. Yes, Your Honor. I want to see where they set it and exactly what they set. Yes, Your Honor. And in the, of course, there's no transcript of the interview. There's a summary that's written afterward, and it was submitted by Mr. Guine. And in Mr. Guine's summary, it was written after the July 17, 2007 interview. Mr. Guine specifically said that all prior art had testimony at trial. You have to come to this argument. If you're going to argue something, you have to show us where it says it, because we're not going to necessarily rely on what we do. What counsel says about it. You have to be able to show us exactly what we say, because counsel's characterizations are things not always accurate. And you should come to the argument prepared to support what you're arguing. And if you don't know where it is, you don't know where it is. That's the way it is. I apologize, Your Honor. I just don't have that one specific citation handy, but I understand in the issue in that particular examination, again, was whether they overcome the prior art based on the fact that their product, their patent, has gel on only one side of the fabric. And they went into that proceeding. Mr. Colvin testified at trial that they went into that proceeding and didn't disclose it. Mr. Guine claims I didn't know about that stuff. Mr. Stanley was in the room. Mr. Stanley was trial counsel. Mr. Stanley did see what was in the summary judgment motion. He was the lead trial counsel in the case. Mr. Stanley knew of the Scalia's letters. He sat on there. Excuse me, Your Honor
. You have to come to this argument. If you're going to argue something, you have to show us where it says it, because we're not going to necessarily rely on what we do. What counsel says about it. You have to be able to show us exactly what we say, because counsel's characterizations are things not always accurate. And you should come to the argument prepared to support what you're arguing. And if you don't know where it is, you don't know where it is. That's the way it is. I apologize, Your Honor. I just don't have that one specific citation handy, but I understand in the issue in that particular examination, again, was whether they overcome the prior art based on the fact that their product, their patent, has gel on only one side of the fabric. And they went into that proceeding. Mr. Colvin testified at trial that they went into that proceeding and didn't disclose it. Mr. Guine claims I didn't know about that stuff. Mr. Stanley was in the room. Mr. Stanley was trial counsel. Mr. Stanley did see what was in the summary judgment motion. He was the lead trial counsel in the case. Mr. Stanley knew of the Scalia's letters. He sat on there. Excuse me, Your Honor. My paralegal is much better than I am. And he's in it. Me the citation, Your Honor. It's a J.A. 010863-75. It is exhibit E. I'm sorry. What was the citation again? Yes, sir. It's J.A. DX 73. I'm sorry. It's a DX 73. It is D73 exhibit. And the citation, Your Honor, is J.A. 010863. It is a part of the 688 first examination file records, a record in the case. And Judge Dyke, I apologize for not having that reference he the earlier. And so, particularly in this case, the issue in the first examination was them representing to the patent office that there was no prior art with jail on only one side of the fabric when Mr. Stanley was sitting in the room. And he's testimony. A trial was that he was just there as an observer. Respectfully, Your Honor, when you go into a meeting and you have that knowledge and you're listening to your partner, I turn off for him, make an argument, you have a duty to disclose that information
. My paralegal is much better than I am. And he's in it. Me the citation, Your Honor. It's a J.A. 010863-75. It is exhibit E. I'm sorry. What was the citation again? Yes, sir. It's J.A. DX 73. I'm sorry. It's a DX 73. It is D73 exhibit. And the citation, Your Honor, is J.A. 010863. It is a part of the 688 first examination file records, a record in the case. And Judge Dyke, I apologize for not having that reference he the earlier. And so, particularly in this case, the issue in the first examination was them representing to the patent office that there was no prior art with jail on only one side of the fabric when Mr. Stanley was sitting in the room. And he's testimony. A trial was that he was just there as an observer. Respectfully, Your Honor, when you go into a meeting and you have that knowledge and you're listening to your partner, I turn off for him, make an argument, you have a duty to disclose that information. He knew that. What's the citation this? Which volume of the appendix? Yes, sir. It's exhibit D73. And the specific page number is 010863. And I believe it's. Yes, sir. 0863-75. 0108. 0108. 0108. I don't have the page in front of me, Your Honor, but I believe that to be the summary of. Yes, sorry. It is. It's about 0865 as far as I can tell. Thank you, Your Honor. It's a. So it talks about the being unpackable over the silo past silo, she products has disclosed in the catalog and business news pages. So it's talking about the specific product disclosed in certain particular references. And they fail to represent what they what they said, Your Honor, was that there were no there was no part with gel on both sides of the fabric. I don't see. Let's not on this page. I don't see that. Your Honor, it is pervasive. That that was the issue in this entire case and in both re exams. It's the issue was the rejection is was based on the fact that the gel had believed through the problem in this courts prior opinion
. He knew that. What's the citation this? Which volume of the appendix? Yes, sir. It's exhibit D73. And the specific page number is 010863. And I believe it's. Yes, sir. 0863-75. 0108. 0108. 0108. I don't have the page in front of me, Your Honor, but I believe that to be the summary of. Yes, sorry. It is. It's about 0865 as far as I can tell. Thank you, Your Honor. It's a. So it talks about the being unpackable over the silo past silo, she products has disclosed in the catalog and business news pages. So it's talking about the specific product disclosed in certain particular references. And they fail to represent what they what they said, Your Honor, was that there were no there was no part with gel on both sides of the fabric. I don't see. Let's not on this page. I don't see that. Your Honor, it is pervasive. That that was the issue in this entire case and in both re exams. It's the issue was the rejection is was based on the fact that the gel had believed through the problem in this courts prior opinion. Okay, I think we're out of time. Thank you. Thank you, Your Honor. Your Honor, the reference in the page that joined appendix accounts, which was just talking about clearly talks about a nylon sheath when it's talking about the silo sheath. And it's clear of record here. There's one thing that's clear of record. That is the one you cited, Your Honor, 10865. And he's talking about that. No, he's cited six three. I think I think Judge Wallet directed him to the two pages later in the specific point where I think the reference was to actual silo sheath products distributed during that time. And he talked about the presence of the nylon sheath. And that was that relates also to my point about the difference between the SSGL and the rest of the silo sheath line. The rest of the silo sheath line has the nylon fabric, which permits the bleed through the whole point of the contest testimony plugging the gap or explaining what would one skill in the art would get out of the comfort zone ad is it had cool max. It had a different fabric. So in order for anything to be corroborative or material, much less but for material in the secondary exam, it cannot deal generally with all silo sheaths much less the nylon silo sheaths. It has to be corroborative on the ones that he was talking about that the examiner found created the issue. And those are the just the SSGLs because the SSGLs had the cool max. And according to the and the cool max does not it is much more hard for bleed through. So in as an on sale bar matter, once the silo sheaths the SSGL shows up, it's a different issue. Well, I was going to point out that the that that in the letters themselves in the first letter, he makes it clear that he's talking about a silo sheath product sold as early as 1992. And nobody in any of these declarations suggests that the SSGL was on sale as early as 1992. And the second letter where he attaches the invoice and I need to go to our reply. The November one, the one to one to train with the 1912 15 five. Yes. And one to one five is clearly the nylon silo sheath, Mr
. Okay, I think we're out of time. Thank you. Thank you, Your Honor. Your Honor, the reference in the page that joined appendix accounts, which was just talking about clearly talks about a nylon sheath when it's talking about the silo sheath. And it's clear of record here. There's one thing that's clear of record. That is the one you cited, Your Honor, 10865. And he's talking about that. No, he's cited six three. I think I think Judge Wallet directed him to the two pages later in the specific point where I think the reference was to actual silo sheath products distributed during that time. And he talked about the presence of the nylon sheath. And that was that relates also to my point about the difference between the SSGL and the rest of the silo sheath line. The rest of the silo sheath line has the nylon fabric, which permits the bleed through the whole point of the contest testimony plugging the gap or explaining what would one skill in the art would get out of the comfort zone ad is it had cool max. It had a different fabric. So in order for anything to be corroborative or material, much less but for material in the secondary exam, it cannot deal generally with all silo sheaths much less the nylon silo sheaths. It has to be corroborative on the ones that he was talking about that the examiner found created the issue. And those are the just the SSGLs because the SSGLs had the cool max. And according to the and the cool max does not it is much more hard for bleed through. So in as an on sale bar matter, once the silo sheaths the SSGL shows up, it's a different issue. Well, I was going to point out that the that that in the letters themselves in the first letter, he makes it clear that he's talking about a silo sheath product sold as early as 1992. And nobody in any of these declarations suggests that the SSGL was on sale as early as 1992. And the second letter where he attaches the invoice and I need to go to our reply. The November one, the one to one to train with the 1912 15 five. Yes. And one to one five is clearly the nylon silo sheath, Mr. Comtas. This is on page 23 or brief stated in this deposition that the SSGL was sold under items number 1272, 1275 and 1276. And that's J.A. 7049. That's the citation for that. The record has a reference to the product that was sent, the actual physical product that was sent along, I guess, with the first Scalice letter identified as one to one five. Is that right? It's the second letter that has a product. And that was the one that Mr. Trainor submitted in the earlier applications that kept the photo. Was that, do we know whether that is the SSGL or the silo sheath? Your Honor, his. Yes, SGL. His testimony is that one to one five means the nylon silo sheath. So, but we have the physical one to what we don't have it. It's in the patent. It is identified in the record in on those sites I was quoting as the same number, one to one five with an extra five, which he says just tells what year it was made. But it's a one to one five. That makes it not an SSGL. That makes it a fabric silo sheath that was the subject of the first reexam. That's why I was trying to say earlier and I apologize that I did not have the letter specifically in front of me. But the letters talk about nylon, the nylon liner. That makes them not an SSGL because the SSGL clearly has the coolmax. And Mr. Lutkin, I think we're out of time. Thank you, Judge
. Thank you both, counsel. The police is in there