lamb as as you might expect we probably will go a little bit longer than the allotted time so don't feel needlessly constrained and make your point seven one two pounds which appears on page sixty one of the court's the court there doesn't really say i met the requirements of finding some nexus between wrongful and some unfair advantage for the wrong direct you know the wicked suppression of real evidence as being something that was material here to the very good faith between the parties here the validity of the pa and so the why couldn't that understanding the conception of materiality i guess what i'm wondering is you want there to be an actual tangible benefit yielded by the pla or some tangible harm suffered by the defendant and i am just trying to understand is that really necessary if for example there is sense besides but for materiality there could be just affirmative acts of agree just mistimed right if you file a false affidavit with the p t o in an effort to try to you know bamboozle the agency to grant you a patent you're basically done definitive invalidating prior use and there the supreme court said well you were barring the court courthouse doors in that particular example tube regardless of weather this suppression of evidence there actually would lead to an invalidation of god and so i guess what i'm wondering trying to figure out is what is really the understanding of materiality in your view given my understanding of thirty cents and he stopped short ok so our understanding i should make clear we're not saying vote for conservation but what we are saying is that there should be some relationship some taxes judged by some put it in your flag and find a mine show some nexus between the wrongful conduct and some unfair advantage something that relates to the court's not wanting to revive the relief work question because it somehow advantage them and taking that relief and i think he's done a particular is a very good example i'm sorry this is an unfair advantage actually obtained or potentially obtained the two thousand and sixteen trial starting with the first origin story of the february twenty fifth amendment it was something that maybe shouldn't in a lot have been relevant to any legal issue but you knew full well that it was going to be relevant that's why your company had a policy of trying to separate th so how is it that false origin story at the deposition wouldn't have had an effect and how is it that a improper sequence of didn't have any impact on the vironment of the litigation and i don't think it had any possible impact on the outcome not an unfair advantage not a slight advantage and there's a reason for this for pad the claims already helpful to go from a broad claim to a narrow claim that broader claim might have been subject to easier invalidation so by going from one to the other if you do actually reduce litigation risk the finding rebuttal that there was a mismatch in the sense there are the arguments there's a mismatch the spec was much broader and the claims are much narrower and the argument we have is that there was no written description because the claims don't want you to write but both but by narrowing you certainly any unfair advantage in terms of reducing any particular risk the district court was unhappy and relied on the fact that in many of the claims he amended the claims quote to cover  which is looking at the terms of the n b a the n b a did not say that if you attend this of these meetings you may never use any information from those meetings that had a specific definition of confidentiality and once the information became public you were allowed to use it somebody who had a docket related to a conversation if you thought the conversation was going to be about this because it might have a tainting effect even if as a matter of law it shouldn't but the way written description that we should not be in these meetings if it's going to take you but it also does not say that once the confidentiality agreement does not apply to information you are forever barred from prosecution and there is no amendment to these claims until after clarke publishes and after all the information disclosed on the call becomes public and so both the n b a and the associated are will have expired so if you're looking for wrongful conduct amendment and some relationship to an unfair advantage you've got neither because the come to file the same or comparable now late amendments yet to cover this like it's the p s i sixty one thirty yes absolutely the first is very similar in amendments were done in the three ninety five p direct rely on as in dish of why he made in them in february two thousand and five for the four nine nine referencing whatever prosecution you're referring to for something called the three nine is there something a little more specific that was testified to or otherwise that is evidence that remark put on that said this was an inevitability as soon as clark published early two thousand and five that merck was going to write these claims regardless of who would be the author of that amendment whether it was someone that's arguably tainted reading of the clarke application of that very well may be true i don't need to know did dr direct or someone else so paint this very specific picture of the clark disclosure i don't believe there  merck showing absolutely positively this all would have happened you know even that direct headline grabber and you've gone in circles i don't blame you it's a yes no answer i think the answer happen well of course the burton is there really a direct did testify that he isn't always just like he was hanging i think glued to the phone waiting for the information about what the competition is doing so of course the burden is on iliad to prove by clear and convincing evidence that there was an apple if there was just clean hands and we believe that means not just wrongful conduct but a nexus some connection to some unfair advantage or some reason that there's powerful evidence that this was a i'm just saying when you're talking about the fact that simulate hasn't put any evidence in there were the ones  that the inventors of glued to the phone and knew about the card would have jumped on direct flight overnight please and then these claims of birth and i think that's exactly what happens your honor because the moment our patent came out and the answer is this first i need to go back to my point which is that the claims of news coverage if you're looking for an unfair advantage if you're looking for an impact you're looking for a potential impact it's hard to see one certainly not one that makes it unfair to merit from interrupted you but i know why i'm here i'm trying to put their words it was a competing story competing out of that when it came to scoping down the claims to cover this particular subject  there weren't any blades mark in the written description such that one of ordinary skill reading the written description have sufficient guidance to arrive at this particular passage of th people this particular claim scope and and now we have a witness that was in the deposition one could argue that he was making it very very clear there was absolutely no then in the trial he continues to say all right probably side in fact no i must have seen it i must have seen it because that's what triggered me and then he says this was the most important subject matter to the collaboration and now the district court judge seems to be set off by that because the indication or the insinuation from dr direct is that he's saying that the collaboration team contemplated this particular subject when there is absolutely no evidence to that effect oh no and there is evidence that fact which i just pointed out who communicated what does that mean included did someone order dr direct to say we want just the fluorine and we just want the methyl up so for talking about the amendments then in february two thousand and five amendment so as a matter of law when you're looking for an description you look at the specification very mysterious the disclosure of that matters right now i'm just right now i'm just interested in what was the motivation to make the amendment who ordered the amendment therefore we want to minimize our risk that the jury is going to conclude that we lifted this particular subjects from someone else and so therefore we're we merk are going to tell this story that we were completely untainted by anything from farms that but once that didn't work now we will say we were completely dented by that but it was the clarke application that really drove the story and now the judge is very possibly have been trying to get him to say something contrary to that we had them and i'm not quite sure you had them yes i am absolutely sure they were produced just now had possession they would not have been shown to dr direct i believe because they were  directly on that call before direct actually got supposed i understand it was more a collection of documents that were sent over inside that collection of documents as an indication that he was planning could not have been clear that dr de rev was on the call if we had thought for a new york minute that there was any doubt about direct participation in that call then we would have caught probably corrected it but by the end of the at the end of the deposition i would direct was all over the map on don't recall you were on that call because the i don't recall the story happens after the break and i think your honor the extent that there's a fear inference from what happened that is to the credit of merck's lawyers because what happened here is you've taken a witness who none of this relates at all and with all respect to the district court i think that is a number of steps too many unclean hands should have wrongful conduct associated with some unfair advantage and if i could ask the court to turn to vip sixty one of the greek of specification fully supported the claims but no one's ever said that that's false and the jury actually agreed with it and if that is the critical point here if you're looking for wrong you have to ask lungful conduct with a link to arguments that were presented to the district court and what the district court said and so i can't say that or than the court at the end it's good to six lines to three or four what mercs argument fails to recognize is that the conduct in this work briefing and otherwise in the case is that it's very easy to move from concrete evidence and findings into more general expressions of outrage and the latter really not helpful then let's get to the specifics one of the questions your your honour's asked mark's counsel was is there any evidence that inevitably these claims would have still been written and i think you can at least sad  i think you said i don't i don't think so he said there was no testimony i think i think there's a mountain of evidence that companies in this business were looking at each other's publications and patents they obviously wanted out of a large range of possible products suddenly somebody comes and publishes was something that says we have i forget what the term was but i'm very impressive potency to get and you look at that and you say we have a project for hep c virus treatment we read a publication that says somebody has a better potency data than anything we have seen we look at our patent and we say if it it's within  our invention how in the world would merck not have claimed that and a limited the potential one out to one of three problems with the broader client and the answer your honor is that that's not what happened here what dr direct as the structure of p s i sixty one thirty unless he knew the structure yes i think he went thirty beforehand right so so two things about that one that it's limited to the doctor the match of the question that i asked was how is it that merck would not have spent more than a few minutes looking at the clark publication which is from the beginning to end about this and the abstract to the claims to the drawings that everything is about and how is it that merck forget about dr direct would not have said this is within our our applications and deep within one of our earlier at least one of our earlier claims that two thousand two p c t claim eight just and written a claim to cover because they didn't we know that that didn't happen because that wouldn't happen because it didn't happen mers position is that when we say that that seems to me not to follow once the wrong it that doesn't tell you what would have happened had he not done it if he had retired in the fall of two thousand and four so then we can only speculate your honor we could do the same thing with ke improper conduct it would have all been ok anyway because we don't know that what we do know is what did happen and what we do is what direct did say he said i didn't get it from the clock out quick ation i couldn't have gotten it from the card allocation know but i'm sorry i don't believe it is really important in a case like this to be precise this finding goes beyond one sixty eight the only testimony cited and the only testimony your citing is about one sixty eight so to that extent that finding is clearly erroneous he did not admit you couldn't get it from the whole clarke application he admitted that at least what he was being shown at that time he couldn't get it that's that's correct trying to get laid he says because this was one compound out of a plethora of compounds in the publication so it's a it's a possible that he's trying to suggest that this publication is huge with a lot of things being discussed and so he wouldn't necessarily be attracted to whatever is said in this particular her graph given the overall content of  that's exactly what he's saying now but let's see what the import of that is so it's not like dr direct then came to trial and said you know what that wasn't accurate i looked at the park at the patient i saw sixty one thirty jumped out guess the deposition are great the car testimony and after trial even more a deposition to put it mildly he was up on the assumption that he actually saw clark that it was the triggering event he was less than forthcoming  possibilities they get the first data that says something is extraordinarily promising more than anything else how would that not be the most important thing isis project because they doesn't say look isis was working on this particular compound he just says it's the most important thing for the collaboration namely somebody has identified  compounds that were covered in this massive genus but they were never looking at florida and in fact what the court specifically found based on time or just an interest on that point are there not some examples with the floor of down there is no correct your honor all in separate places and what our expert testified is if you followed the teachings of the patent you would be led away from combining a method with a plural gallon and a single grain and one of the reasons in germany park actually testify waived deposition that one of the reasons you would move away from it is that one of the problems was toxicity we're talking about a treatment for hepatitis c and one of the problems with fluoro is it finding out that they had gone they meaning farmers that a plant in totally different direction that all the sudden changed his mind as to what was the most important form or they never and i will make a broad statement here  stipulated to that they never made you tested i just to follow up on trying this question i understood his question as as suggesting that there's a fair way to interpret what dr direct said right there about subject matter that's most important the collaboration as saying once the clarke application popped out and you saw all this really valuable activity in this one area of merck's genus then clearly it would be there for the most important subject matter to the merck isis collaboration to ensure  getting more specific claims that are directed to that really valuable subject of scope so i guess the question therefore is why isn't that a reasonable maybe even the more reasonable narrowed the claims to a cover the most important of mark's work and what the court found out it was so he didn't say that he said narrowed the claims to cover something that was the most important to what you want to translate it into the laboratory work of merck and isis no your honor i'm not i'm just quoting him verbatim when he says it was the most important collaboration and what the court found having viewed his demeanor and all the evidence presented at trial the court found as a matter of fact that it is not credible the compounds that were never never made use or tested during the collaboration or considered by merck to be the most important work of the coroner and so the point is is that ok the judge concluded that at this moment in time dr drew is trying to convey to the jury with this statement that maybe could be read a couple different ways that he never lessens trying to conveyed to transmit to the jury this was really important to the work we were working on because this is we we call ourselves contemplated this particular subject matter so that's why i meant it the claim the way i do it that's but that he didn't see it exactly in those terms and so therefore we're trying to figure out if in fact that's how she interpreted it and therefore and then is that a fair interpretation  demeanor and coming to the conclusion that he wasn't telling the truth he wasn't credible that compounds that were never made used to test a journey collaboration were considered by her to be the most important work of the collaboration she clearly erroneous there are how can we say sitting here when she was sitting there listening to him and watching him and that is what she concluded as a matter that a lot of clearly couldn't a man the most important thing as a these patents that issue came as a result of unconscionable actions and they resulted from the serious that but i guess what if the patents despite any shenanigans that happened what if the these claims are in fact fully supported by the written description and also enabled and so therefore whatever happened here whatever mr happened here didn't actually infect the validity of the path it after having heard everything he said we say obviously not and that led up to that that was a series of steps first she said dr director waited for the structure to publish so that he could her analysis she did that because the temporal link eighteen days after it was published amended the claims without any kind of into office action on the part of the panel don we'll see if we get there but you know we're we're trying to figure out what happened here one is one theory is that clark application didn't influence or why because he didn't have it maybe because he didn't know it then the other counters fact is that he did know about it because he was he was waiting he was waiting like a hawk for that application to publish and then once he learned the application published why wouldn't he likewise also have read it and then if you've read it you know why wouldn't it be painfully clear that the content was directed to two prime methyl of flooring down the aisle can you fit these two pieces together i can your honor which is that there is no explanation and the court point that out we never got an explanation from dr direct why he amended the claims when he did the patent had been pending the allocation pending for months there's been no office action asking them to narrow the claims that are not quite true we never got an explanation he says must of been the triggering event i don't remember but must have been to what did the district court what do the district court's findings imply about what the district court he waited until it was published to give the appearance that he found it from a public source and then the next step is and but for obtaining it improperly he never would have narrowed the claims that's a three step process that starts at yes she did have the clerk application before he filed the amendment and yes he looked at it i think it we're going to believe that you're looking at your competitor here let me back up he found out on the phone that it was going to publish i'm trying to be true to that record since he never emitted one way or another he said it and in hindsight that well it must have been the triggering event but he never said that and he still wobbled on when he saw it and the if impact that it had on him but it was very did not say we are talking about the deposition did not say that he did not remember a call or that he could not be sure but instead definitively stated i wasn't on it it seems to me the second half is true and the first is fa he said i'm going to get i don't have personally guess several dozen times i don't recall at the beginning of the deposition and then the transition in the sort of page twenty nine to thirty eight range to the very short i'm very sure because the search is his memory he says and he would have remembered it and he doesn't remember it so it must not have happened and then later on  your own attorney essentially does so a follow up that i think right near the end when seventy seven or something and and he says i want to be sure are you saying you weren't on the call you don't roughly half a dozen times he says i don't remember i don't remember i don't remember i don't remember so what were you doing saying to the court direct did not say that he did not remember a call so that finding of fact that your honour's talking about  is that he said twenty five times or so i don't recall and he said maybe eight or ten times i wasn't on it and he said both things so good what were you doing saying to the court he didn't say the first thing what we were talking about is quoting when he was absolutely positively hundred percent sure and and his honor judge clever injures right there was a break it doesn't reflect how that's why i mentioned pages one to twenty nine where he said i don't recall before he somehow transition into understood you to be saying how your remark on said yes that and that's how we read it if she was talking about the passages right before everyone on the search were right on the other to say that and no time various deposition did he ever say i did not recall being on the so sure you weren't on the call not just he was sure he wasn't on the call he gave a lengthy explanation as to why he wouldn't have been on the call and that is with court down particularly sleepy particularly offensive in that described  couldn't have been on the call it would have been wrong for me to be on the call i was prosecuting the merc ice this docket if i got in on the call it would have been a conflict of interest a kind of tainted my judgement he went on her and about why he couldn't possibly could not  possibly been on the call and that the court again after that made lengthy findings of fact starting at line eleven on page forty nine and comparing what he said it a statistician to what he said it trial and fighting again that he was just not credible that the bottom line is that dr drew breath tonight being on the call his counsel did a good job of getting him to back off a little bit and say well i don't remember but at the time the only reason that he would have to forty six line eight the court said and i won't read the whole thing but the bottom line is it was in fact wrong for merck to allow dr tourette to continue to prosecute the four nine nine and seven one t conduct related to the march two thousand and four call was not considered by what you want to separate that from what have you happened after the exactly so she's saying the call that goes to the four ninety nine his saying i'm within the fire taints everything going forward but just why is that necessarily so if hypothetically but clark application is somehow its disclosures verbatim word for word for once he learns that he has a conflict and the same thing happens to a attorneys all the time where we're representing one person where in the middle of a discussion we learn for the first time that that person is going to implicate another one of our clients well let me get outside let me let me  dr direct continues to prosecute don't like your deposition i don't know if we'd still be here if he had lighted his deposition once you're caught lying your deposition don't come into court and lied to the court but he does and once his attorneys know that he's going to recant tell someone tell the court that he's going to recant don't wait is the court found in her in her opinion for opening the story was going to come or he was going to repeat the the story from the deposition right it was going to be one of the two do i remember you you are did you cancel the deposition the thirty six witness of about the due diligence correct and even though that would have been mercs official testimony about that call in retrospect maybe we shouldn't have we might have gotten yet a third story as to why the claims got narrowed but if you don't you don't think it's fair that both sides knew after at least after may of twenty fifteen exactly what the evidence was going to be and you just stayed silent about each other you hoping to create this wonderful credibility problem basis for a trial that otherwise would be focused elsewhere and they're sick and they're waiting just trial what they moved to exclude was the fact that when he was on the colleagues under a confidentiality agreement that's all they knew to exclude they told the court the pretrial conference that they would be calling him a trial and when they agreed to make him available for us to call first it was only under the condition they be allowed to do their direct examination after seeing the car why didn't they file motions in limine and to clear out all of this testimony about anything that has to do with the prosecution because they did not move to exclude it were successful in getting the court to have the jury not answer the derivation question if the jury found we hadn't met our burden on written description or enablement they never moved to exclude for example  they fully intended to call and they told the court that at the pretrial conference and what did they intend to call him for exactly what they used him for which was to testify as to written description and enablement and that the claims were in fact fully  a bad witness burke stood up in open and closing and said to the jury three times the doctor to rat was an honest man they doubted for him three times and so when the courts down and they made him a centerpiece of yes very much so dr direct as an attorney he was an officer of the court that's one of the things she found was so agree just is that when an officer of the court comes into court and takes the most important oath you can take to tell the truth and harm regarding the improper result condo that is very interesting because the public harm there is that no business is going to want to go into any kind of a collaboration with another business if they otherwise would somebody deliver over their specific compound exactly sure that it's only going to be used in a friendly way and it's critical to research the pharmaceutical industry where you've got a little company like pharm estimony to me to be able to write an opinion which i would say that certainly was involved in this case but what about the good from the from the role of confidentiality agreements in collaboration there we go that's where the court she doesn't give the transcript citations but she's basing that on the testimony that was heard at trial opinion also points to this particular testimony as casting doubt on whether mr doctorate would have thought the farm publication to be important it's a start at line eight by the way by the way this is where dr direct appears to be volunteering some insights about what he would understand from the clark application asks well why does this matter and then he answers that basically that the definition of b would have been indefinite because of such a large number of structures so it would have had no impact even if i had seen that publication and my narrowing the definition of b to a pyramid and ring and i just want to make sure i understand this answer correctly because it feels like it's a binary and versions that are double ring i would guess that what that means is because it's directed to both of you taking potentially a billion compounds and doubled up into two billion compounds because if you're only focused on single ring then obviously at least got the base out of the way and now you could figure out the sugar which is still billions of compounds that if you could either have an infinite number of sugars we had two different bases that you just doubled your amount of compounds that that's my guess it's not the cleanest cancer in the world but you know you don't think that the clark application was indefinite i know i do not know here and i get and we made a record any unfair advantage anything that takes the seven one two and the difficulty is this the district court does not find anything and it changed the seven one two that traces to doctoral the doctor dr proposed has a linkage certainly and it's i would not say that they're totally unrelated and if there was a business misconduct with regard to that collaboration of course but i think when we're talking about the nexus and i think judge bryson's articulation the nexus is probably in the past you're looking for a be the point where respect so that's it for you that's far too remote what's your answer actually than you can deny that there is a possible impact on the litigation of the derivation argument because of this back and forth from one direct did write i think that reduces your honor to the notion that there was a possible income because they're in the same case and they share a specification but the in the same case cannot be enough because i think that would be and i think the answer comes from the case law which is that unclean hands does not exist to render the property owner an outlaw it does not mean he no longer has rights and so the fact that you have unclean hands that in fact one hat does not mean that for each claim and each had there was a direct impact a direct effect that affected the equity of what their belief was being sought and that case they'd use an ill gotten decree i border to get out of the imposition of a very very onerous set of bonds with respect to every single one of the pals and that analysis and keystone of having to get find an impact on each and every one you know keep em i remembering right that two and three or three four five or something just to get captured within the court's ruling and they get captured precisely because the district court finds that there was an advantage with respect to all of the gotten any information from direct or otherwise in any way to the seven twelve which is why you have that foot now which is i can't trace it to business misconduct and any effort to trace it to for example the fact that he continued his prosecution there actually provided in the interim are going to response clear statements that direct was there and therefore is required to destroy his evidence then go to counsel and then all the way over to the seventh hole where the connection is so remote simply goes too far and  by the district court to the misconduct and non recusal extending to from all of the applications including the seven twelve so obviously in the district courts has reached conclusions of law and reasons those are path itself is not tainted if it knows not a product if it has no relation in that sense to the inequity that underlying it then you go too far in saying the unclean hands means i'm going to college because otherwise you wouldn't have a penalty it would suffer no loss and that was the requires a nexus between the wrongful conduct and some unfair advantage some potential impact and for the seven twelve in particular it's just not there and even for the four ninety nine the district court and the pitcher if the two sides right will conduct as the bas