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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PUZHEN LIFE USA, LLC,
`Petitioner,
`v.
`ESIP SERIES 2, LLC,
`Patent Owner.
`
`Case IPR2017-02197
`Patent 9,415,130 B2
`
`
`Record of Oral Hearing
`Held: December 4, 2018
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`
`
`Before CHRISTOPHER L. CRUMBLEY, JON B. TORNQUIST,
`CHRISTOPHER M. KAISER, Administrative Patent Judges.
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`Case IPR 2017-02197
`Patent 9,415,130 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`
`
`
`MARK MILLER, ESQ.
`Dorsey & Whitney LLP
`111 South Main Street
`21st Floor
`Salt Lake City, Utah 84111-2176
`(801) 933-4068
`miller.mark@dorsey.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`
`
`GORDON K. HILL, ESQ.
`Pate Baird PLLC
`36 West Fireclay Avenue
`Salt Lake City, Utah 84107
`(801) 284-7000
`ghill@patebaird.com
`
`
`The above-entitled matter came on for hearing on Tuesday, December
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`4, 2018, commencing at 10:00 a.m. at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Case IPR 2017-02197
`Patent 9,415,130 B2
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`P-R-O-C-E-E-D-I-N-G-S
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`JUDGE TORNQUIST: We are here on IPR 2017-02197, Puzhen
`Life USA, LLC v. ESIP Series 2, LLC.
`Who do we have from Petitioner?
`MR. MILLER: Mark Miller from Dorsey and Whitney on behalf of
`the Petitioner.
`JUDGE TORNQUIST: And Patent Owner?
`MR. HILL: Gordon Hill from Pate Baird for the Patent Owner.
`JUDGE TORNQUIST: Okay. Per our order setting oral
`arguments in this case, each side will have 60 minutes to present their side.
`Petitioner bearing the burden of proof will go first. You can reserve up to
`half your time for rebuttal. Then we'll hear from Patent Owner. You can
`also reserve surrebuttal time if you'd like to for a brief surrebuttal. Then we
`will hear from rebuttal and the surrebuttal, if any.
`As you can see, Judges Crumbley and Kaiser are appearing remotely
`here today. They won't necessarily be able to see what's on your screen or
`if you use the Elmo, so please, if you're talking about an exhibit, identify the
`exhibit and particularly the line numbers to it, if necessary.
`Okay, with that, Petitioner, if you're ready.
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`MR. MILLER: Thank you, Your Honor. I do have a presentation
`on the screen. I think I submitted that ahead of time. I don't know if the
`other Judges have that.
`JUDGE TORNQUIST: We all have that electronically.
`JUDGE CRUMBLEY: We have copies of it.
`MR. MILLER: That's great. I'm going to begin by briefly
`addressing the real party in interest issue.
`JUDGE TORNQUIST: Briefly before we start, any rebuttal time?
`MR. MILLER: Do I have to pre-guess?
`JUDGE TORNQUIST: If you pre-guess, we can give you the
`lights. If you just want to go, we can do that as well.
`MR. MILLER: I think I'll just go and just reserve my remaining.
`JUDGE TORNQUIST: Okay.
`MR. MILLER: Okay. So on slide two of the presentation, I want
`to begin on addressing the real party in interest issue. One thing that the
`Board has recognized is the identification of real party in interest is not a
`jurisdictional issue. It is something that the Federal Circuit has held can be
`corrected without termination of the proceeding. And when this Board
`instituted this review, it did so extending a couple of invitations effectively.
`The Board found that the factual record at that stage was insufficient
`to establish that there was an improper -- a failure to identify real party an
`issue. But the Board also extended an invitation to Patent Owner to present
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`persuasive evidence throughout the proceeding and that it was an issue that
`will be considered.
`The Board also issued an invitation to the Petitioner to explain any
`equitable reasons why Petitioner should be allowed to correct the real party
`in interest, if necessary, rather than terminating the proceedings.
`So there are two invitations. And we can see here in slide two that
`the Board's conclusions that the evidence of if all you're showing is an
`intermingling of companies or a general parent structure, corporate control is
`insufficient, and at the bottom there you can see this invitation. I didn't put
`in the invitation where the Board invited Petitioner to identify equitable
`reasons of why correction would be a remedy if there was a failure to
`identify a real party in interest.
`After these two invitations, the Patent Owner no longer really
`pursued this issue factually. There was never a request for document request.
`There was never a request to serve interrogatories. They didn't seek a
`deposition.
`So the Board found that the factual record at institution was
`insufficient and they stuck with that. The two additional things they
`identify in their response if you go to slide three is they identify a certificate
`of interest that was filed during their effort to appeal the institution decision
`and the only thing this does is reaffirm what was already of record that
`Puzhen Hong Kong is a parent company.
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`The other thing they point to is a power of attorney that was filed. I
`have changed law firms, so when I joined Dorsey & Whitney I filed a new
`power of attorney. And it was signed by Ms. Song and Ms. Song identified
`herself as CEO of Puzhen Life USA. And they point out that Ms. Song is
`also a member/owner of the parent company. And that's the only thing
`that's additional to the record on a factual basis from the institution decision.
`And in their Patent Owner response on page 5, I believe it is, they
`acknowledge that the best they can do on this record, they say at best it's
`unclear whether Puzhen Hong Kong is a real party in interest. So after all
`this, the best we have is it's unclear.
`And if you go back on slide four, we go back to the institution
`decision. Without more, they're still at the same stage they were at the
`institution decision on the record.
`General corporate control, there's a parent/child relationship in the
`companies. And Ms. Song, the fact that she's a CEO of Puzhen Life USA
`may also have executive responsibilities or positions at Puzhen Hong Kong
`doesn't change things. You've got -- I cite here on slide four a case from the
`Board that explains that just because somebody can wear different hats,
`sometimes parent company, sometimes child company, doesn't establish RPI
`status. So that's where we are.
`Now candidly, from our side we're not opposed to correcting the
`statement of real party in interest if the Board decides that in an abundance
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`of caution, maybe Puzhen parent company in Hong Kong should have been
`identified. But the important thing here --
`JUDGE KAISER: Question.
`MR. MILLER: Yes?
`JUDGE KAISER: Sorry. The correction cases all were cases in
`which, yes, it was clear the real parties in interest had changed or were
`certainly wrong and the party -- the affected party came in and said we'd like
`to change our real parties in interest and there was some dispute over
`whether they have the right to do that. And that's not really what's going on
`here, right? I mean you're still saying we're right, Puzhen Hong Kong and
`doTERRA are not actually real parties in interest. They shouldn't have been
`named. They weren't named. That's correct. But let us correct anyway.
`I'm not sure what you want us to correct to and what's the basis for doing
`that? You're neither fishing nor cutting bait.
`MR. MILLER: I agree with you. Our position is there was not an
`error in the real party in interest identification. doTERRA is not a real party
`in interest. The record has not established any error at all and that is our
`position. It is the same as it was at institution. So I think our position is
`the right decision is we're at the same place we were at institution. There's
`insufficient evidence to conclude that there was a mistake in the real parties
`in interest and therefore, we're done.
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`My only point in bringing up equities was if the Board somehow
`decided that now they look at the record and they think they should have
`been named as a real party in interest, there are equitable considerations to
`take into account that would justify correction rather than termination of the
`proceedings.
`And what we've laid out there is if you terminate this review at this
`late stage having invested in the experts and all this time, there is a potential
`for a one-year bar to hit the Petitioner. And the one-year bar was brought
`up or was -- the reason the one-year bar might be an issue there is because
`the Patent Owner improperly filed a complaint against my client. The
`Patent Owner filed a complaint having no basis to believe there was every an
`infringement by my client and the record that bears that. They couldn't --
`when they asserted their infringement contentions in the case, they couldn't
`assert it against my client. And before they filed the complaint, they knew,
`they were on notice that my client had stopped selling the accused product
`before this patent issue, long before. They knew that there was no longer
`any actions in the United States of making, using, selling, or offering to sell
`his product and yet they filed the complaint.
`And so a violation of Rule 11 potentially would create a one-year bar
`against my client if this review is terminated. That's the equities that
`pursuant to the Board's invitation, if the Board decided to say Puzhen Hong
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`Kong should have been a real party in interest and we have sufficient
`information now, then that is what we think the proper avenue would be.
`JUDGE TORNQUIST: So counsel, just procedurally, how do you
`see that playing out? There's going to be a final written decision here. So
`procedurally, how do you or see playing out your correction time-wise?
`MR. MILLER: You know I've never encountered -- I don't know,
`other than if -- I mean when you correct the real party in interest mandatory
`statement, the concept is and the way the Federal Circuit explained it is it's
`a correction that dates back to the original filing date.
`Section 312 issues are treated as pleading issues
`and if there's an insufficient pleading, you can correct a pleading and it dates
`back to the original dates. So even if you came out with your final decision,
`if that final decision included an instruction to submit a corrected mandatory
`statement of real parties in interest, we could do that at that stage and it
`would date back and it would correct the issue.
`JUDGE TORNQUIST: And who are you proposing you would file
`this for? Is it just Puzhen Life HK or also doTERRA?
`MR. MILLER: I would say -- I mean we don't think it should be
`done at all. It would be whoever the Board decided needed to be added. I
`don't think there's a need for a correction. I'm just -- we wanted to make it
`clear that worst-case scenario here, correction is in the interest of equity and
`justice. And it would be unjust and prejudicial to my client, unfairly
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`prejudicial to vacate the proceedings totally and have this improvidently
`imposed one-year bar against them from a complaint that never should have
`been filed against them.
`JUDGE CRUMBLEY: Counsel, let me build on that because you
`bring up the interest of justice. And so let's say we were to agree with the
`Patent Owner that you should have made at least one of these two parties a
`real party in interest. You would agree with me that the time that you
`should have done that is at the time of filing mandatory notices as set in our
`rules, right?
`MR. MILLER: Right, that's what the rules say that that's when that
`comes, yes.
`JUDGE CRUMBLEY: And so to let you correct at this point, we
`would be permitting late action and our rules say that we may permit late
`action on a showing of good cause or in the interest of justice. And I hear
`you to be arguing that the interest of justice is what you would be relying on
`to allow you to correct at this point?
`MR. MILLER: Yes.
`JUDGE CRUMBLEY: So if we are into this equitable
`consideration, don't we need to sort of consider the bitter with the sweet for
`you and while we do need to take into account potentially the bar issue, there
`is also the issue that your client will have never made an affirmative
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`statement that we truly believe that this person is an RPI. You're
`completely deferring to the Board's determination of that issue.
`And how did we, as Judge Kaiser was saying, how did we in the past
`in order to find that interest of justice require a party to take an affirmative
`stand that someone is a missing RPI before we allow them that late
`correction?
`MR. MILLER: I'm not aware of situations like the present one that
`I can recall or that I’ve read about, so I don't know. This is candidly new
`territory for me, Your Honor, as well.
`When the proceeding continued to proceed, when Patent Owner
`wasn't seeking discovery or depositions or document requests on the issue,
`we kind of felt like this is not an issue they're pursuing on the facts. They're
`not trying to develop this record and it's not an issue that's that important to
`them and we focused on the merits and validity, so that's where we stand.
`JUDGE KAISER: That's not an unreasonable position I think for
`you to have taken for the majority of the duration of this trial. You're right.
`The record hasn't really changed much in the sense of what facts are there
`and what their import is, and we all thought we knew the standard a year
`ago.
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`But what does the Applications in Internet Time case from the
`Federal Circuit do? I mean, it isn't clear to me necessarily that it changed
`the standard for who is an RPI, but it arguably did, and I wonder what your
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`view is on that and whether that changes what we ought to be doing in this
`case? Did we get it wrong a year ago? And, presumably from you, why
`not?
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`MR. MILLER: I have the Applications in Internet Time case here.
`I don't recall the details, but it seems to me that that case was talking about --
`I almost get the sense in that case -- I can tell you, I think it's unclear.
`Because it seems like the Court was talking about real parties in interest in
`that case in the context of Section 315, which may not necessarily be exactly
`the same context of what a real party in interest under Section 312 may be.
`They talked a lot about common law real parties in interest issues
`and so if there's somebody out there -- to me, there's almost an open door
`that said there could be a party out there that could be a real party of interest
`under common law and would have triggered the one-year bar, but not
`necessarily had to be disclosed in Section 312.
`So I don't know the answer to your question on the historical case
`law record. What I do know is it seems from this case they make it clear
`that it's not a jurisdictional issue that necessarily has to blow up a review
`process or hold the filing date if there's interest of justice or ethical reasons
`for it not to.
`And I don't think there's a limit on what type of equitable reasons for
`interest of justice applies. It's a case-by-case scenario. This is certainly not
`a common case where the potential for a one-year bar to be imposed on my
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`client was the result of an improper filing and certain length. I don't think
`that happens all the time, but what you do on the other side of the equities is
`if you do vacate or terminate and find that for some reason the factual record
`now justifies finding a lack of an RPI designation which I don't think it does,
`but if you do, then you can encourage gamesmanship in imposing a one-year
`bar. You can file and serve a complaint and withdraw it. And now there's
`a one-year bar on somebody to challenge their patent. I mean, there's a lot
`of problems there.
`So I think we've made our position clear in the papers on that issue
`and I'm going to move on to the merits of the ’130 Patent. If you go to slide
`five, so the ’130 Patent is basically -- it's an oil diffuser. And if you look in
`the abstract of the final stanza there that I have highlighted, that the main
`point of novelty, alleged novelty, is the inclusion of this micro-cyclone that
`allows for diffused flow of ultra-fine droplets.
`If you go to the next slide. The ’130 Patent itself, what's important
`to note, is it effectively cites to the prior art Sevy Patent from the same
`inventor, the ’418 Sevy Patent, and says that when it comes to choosing a
`pump or compressor or all these other components, Sevy discloses
`everything. And then it says, in addition to the diffuser system described in
`those foregoing prior art patents, the present invention may include an
`improved diffuser nozzle system including a micro-cyclone.
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`So the patent itself says we're basically -- if you go to the next slide,
`it's pretty clear. What you're doing, this invention is nothing more than
`taking the prior art Sevy patent, which is on the right in slide seven, and
`replacing the little separator plate with that aperture there, replacing that
`with the micro-cyclone. So instead of an aperture through the plate, you
`have a curved channel or a swirling channel or an arcuate channel. That is
`the invention we have here.
`JUDGE TORNQUIST: Which micro-cyclone are you saying is
`replacing a new art combination?
`MR. MILLER: Well, I'll get to the combination.
`JUDGE TORNQUIST: Okay.
`MR. MILLER: Yes, like I think each other prior art patent has
`teachings of the general teaching and then how they could be combined.
`And if you go to slide eight, Patent Owner's expert Dr. Bell
`acknowledged in his testimony, I cite here the pages from his deposition
`transcript. He acknowledged that yes, the separation limitation where it
`talks about sending the flow path through a spiraling axially,
`circumferentially, simultaneously, and continuously through an arcuate
`channel formed through the wall, that that is the point of distinction in these
`claims.
`So I think that's clear.
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`Now in slide nine, these are the grounds of institution. There's four
`grounds that we've asserted. And I'm going to briefly address each one.
`There's Sevy in view of either Cronenberg, Giroux, Stroia, or Kato.
`Now in slide ten, one thing to point out is the declaration from Fred
`Smith, the expert of Petitioner, he goes through and puts together a good
`outline in his report in his declaration that explains how the prior art is chock
`full, even beyond just these four references we're trying to combine with
`Sevy. The prior art is chock full of teachings of the fact that if you send --
`if you're trying to create a mist and that's really what we're talking about,
`mist creators. We're just trying to create a mist. We're trying to entrain
`liquid into air. It is a well-known principle that if you send the flow
`through a spiraling or curved type of channel, it will enhance the -- it will
`reduce the droplet size. It will make it a finer mist. And so there's the --
`JUDGE KAISER: Can I interrupt you for just a second on that?
`MR. MILLER: Yes.
`JUDGE KAISER: Occasionally, it seems like in this case, there's
`some confusion between the concept of separation, whatever that means, and
`enhancing the mist, whatever that means.
`MR. MILLER: Right.
`JUDGE KAISER: And I think there is some overlap there, right?
`A separation of larger droplets is a way of enhancing the mist. But I'm not
`sure it's the only way of enhancing the mist and I'm not even sure it's the
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`only way of reducing droplet size. I mean some of these other secondary
`references sometimes talk about breaking up the big droplets into smaller
`droplets or evaporating away the bigger droplets or things like -- along those
`lines, as opposed to sending them to some location other than where the mist
`gets sent.
`So I have maybe two questions here, but the first one is in this
`portion of your expert's declaration which you're talking about, is he talking
`really about separation or is he talking about some other broader category of
`things that might include separation, or is he doing the latter, but then
`explaining why it's separation and not something else?
`MR. MILLER: I think he's talking about both because they involve
`separation. When you talk about the idea of bigger droplets running into a
`wall and becoming smaller droplets, the concept is what you're doing is
`anything big and heavy is going to either coalesce against the wall and fall
`out so that the smaller droplets pass through and it's a finer mist.
`So it's kind of -- it's the same process, but it accomplishes multiple
`functions. It accomplishes separation, but it also accomplishes making the
`mist that's actually projected finer. And it doesn't have to be -- I think what
`he's explaining is it's not just this process is separation and this separate
`process is a process of atomization of the mist. It's the same process and it
`accomplishes both atomizing the droplets to smaller and separating the
`larger droplets.
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`And there's plenty of evidence that comes from Dr. Bell, Patent
`Owner's own expert, about the prior art and the well-known concept of
`separation through these methods. If you go to slide 11 --
`JUDGE CRUMBLEY: Before you move on to slide 11, can I ask
`you a question about slide 10?
`MR. MILLER: Sure.
`JUDGE CRUMBLEY: So when I looked at your slide and I got
`your demonstrative and I looked at your slide here and I had to go hunting
`for Higson and Terada because while they appear in these paragraphs of
`your expert's testimony, I didn't remember them from the briefing at all.
`Did I miss them? Were they in there? Or are you relying on just the
`testimony about them from your expert?
`MR. MILLER: They are in the expert declaration, I think, for the
`concept of when you're analyzing the actual combinations we propose, the
`four combinations, when you're analyzing that, there are other references
`that our expert cites for the -- just to establish that you've got to be doing this
`from the concept that this is a principle that's well-known in the art. This
`isn't something new and when you read the references in the combinations,
`you should understand that it's been done before many, many times and it's a
`well-known concept that if you cause droplets to make a sudden change of
`direction, you're going to create separation. And that can be done through
`circular paths. And in fact, this is a --
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`JUDGE CRUMBLEY: I take your point on that. And I understand
`that you're relying on these only sort of as background level, you know,
`background knowledge because a person of ordinary skill of the art would
`have and they're not part of your actual combination of references. I
`understand that point.
`I guess my point was just do you discuss these in the briefing at all?
`The petition at 17 that I see, your cite thereto just says -- just adds a cite to
`paragraph 20 through 53 of the expert, but doesn't actually mention any
`particular reference at all.
`MR. MILLER: Yes, I think in our actual brief what we did is we
`kind of make the point, this is a well-known concept and we cite to his
`discussion of these, but we don't talk about these references specifically in
`our briefing.
`JUDGE CRUMBLEY: Okay, I was just trying to make sure I
`hadn't missed something. Thank you.
`MR. MILLER: And then in slide 11, we've got from Fred Smith,
`we've got his explanation of vapor separation through combining
`Cronenberg with Sevy. We've also got the deposition testimony from Dr.
`Bell, the other expert from the Patent Owner, and he agreed that Higson
`teaches separation. He agreed that Terada teaches separation. And he
`agreed that Cronenberg teaches separation.
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`So some more cites to the deposition of Dr. Bell I want to point out
`that aren't in my slide would be on page -- I'll direct the Board to page 100.
`Page 100, he testifies that quickly changing directions, causing droplets to
`do that was well-known in the prior art. Page 101, he even said that this is a
`foundational principle of fluid mechanics. Page 103, he explains that the
`result of getting separation by sending these water droplets through the
`cyclone channel of Sevy would not have been a surprising result. It would
`have been an unsurprising result.
`So even the result in the ’130 Patent of separation through that
`cyclone channel, he characterizes as unsurprising. It wasn't anything.
`And then page 113 of Dr. Bell's testimony transcript, he also says
`that using a circular path to create separation was well-known as far back as
`the 1980s. So we've got this concept that it's effectively undisputed that it's
`known that if you want to create better separation when you're trying to
`entrain liquid and air, you want to create better separation of the big droplets
`from the fine droplets, you cause the droplets to change direction and you
`can send them through a circular path and that works. That's well-known.
`So with that in mind of what a person of ordinary skill in the art
`would know, then we turn to slide 12, Sevy combined with Cronenberg. In
`Cronenberg, we have in slide 12, Cronenberg teaches that if you send
`droplets through the spiral channels, you're going to get a mist of vapor, and
`if you go to slide 13, this is where Cronenberg talks about the arcuate
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`Case IPR 2017-02197
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`passageway and there is the figure where they go up the spiral and
`passageway. And it says, so that a desired separation is achieved. So
`you've got Cronenberg teaching hey, spiral passageway, separation.
`Well, then let's look at --
`JUDGE KAISER: To be fair, though, the claims require not a spiral
`passageway, but a spiral passageway through a wall, right?
`MR. MILLER: Correct.
`JUDGE KAISER: And I think you maybe admitted this, but let me
`get it so that it's clear. Cronenberg doesn't have a spiral passageway
`through a wall, right?
`MR. MILLER: No. And we're not relying on Cronenberg for the
`through a wall portion. Through a wall happens in Sevy. Sevy has that
`separation plate with a hole that goes through the wall.
`JUDGE KAISER: I guess what my question is -- okay, Cronenberg
`suggests spinning the fluid through a curving path will cause the larger
`droplets to separate out. And it gives you a way of making that curving
`path which is to have sort of a central plug the spiral channel goes around.
`Why wouldn't a person of ordinary skill in the art just take the
`separation plate out of Sevy completely and put something like a
`Cronenberg structure with a curving channel around the plug in place of that
`separator plate? Why take Sevy's separator plate and shove Cronenberg's,
`just Cronenberg's spiral path into the hole in the middle of that? I realize
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`it's not a -- you're not arguing bodily incorporation, but it seems like
`Cronenberg gives you a perfectly good structure for doing the separation.
`Why use a combination of it and Sevy as opposed to just using it?
`MR. MILLER: Well, and obviousness analysis is not defeated
`simply by saying -- there are other ways you could have provided references.
`So I agree with you. Maybe somebody would have taken that plug style of
`Cronenberg and just swapped out the whole plate of Sevy. That's one thing
`that would have been obvious from this combination, too.
`However, an alternative to that is Cronenberg teaches the concept of
`using a spiral passageway and also teaches, if you look at slide 13 here, says
`that instead of a helix, just an arcuate passageway in place of a helix will get
`similar results. You can still get the desired separation.
`So what Cronenberg teaches is hey, if you want to improve
`separation, you can use an arcuate passageway and then Dr. Bell, if you go
`to slide 14, what's really important is when we deposed Dr. Bell, we asked
`him, we asked him if he modified Cronenberg so that instead of the full
`spiraling helix, you just had an arcuate passageway that wouldn't go the full
`360 degrees because he admitted that arcuate passageway needs less than
`360. And his answer was well, if you did that, you wouldn't have
`Cronenberg, but you would have the ’130. His answer was then you would
`have ’130, but you wouldn't have Cronenberg. So he admits that if you just
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`change Cronenberg the way Cronenberg suggests is an alternative, the
`arcuate passageway, you get the ’130 Patent.
`And then we asked him this. If I had a shape from another reference
`in my mind that basically said hey -- so Cronenberg has taught an arcuate
`passageway. So if I have this shape in my mind that the prior art teaches is
`beneficial for separation and I want to incorporate that into Sevy, we said,
`would it be logical to put that into that plate? And Dr. Bell said that would
`be the first place that it would go. He said that would make sense. So Dr.
`Bell admits that it is a logical and sensible thing to do to incorporate an
`arcuate passageway from the prior art into that plate.
`Now, there may be other ways that would have been obvious and
`logical to incorporate the concept of swirling or arcuate separation of flows
`into Sevy, but this is certainly one of them that would have been obvious and
`certainly not something that is novel and deserving of patent protection.
`So based on Sevy and Cronenberg, this next slide, slide 15, simply
`kind of just a couple of call outs that show Fred Smith's position on the same
`issue and what we wanted to show here is the idea that this is a well-known
`concept and that it would have been obvious to incorporate it and combine
`them and that it would have been logical is almost undisputed here, because
`both Dr. Bell and Mr. Smith have similar conclusions. When you read Dr.
`Bell's testimony, we feel like the combinations and the logic and the
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`obviousness of it is basically an undisputed record when you consider the
`experts.
`And so this is Fred Smith's -- in slide 16, Fred Smith kind of does
`what Your Honor suggested here. He said, you know, you could have taken
`Cronenberg and jus
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