begin by addressing the matter that arose at the end of next week last week when judge garbus concluded that there was not in fact a ineffective assignment making c t p the owner at the time of the filing of the lawsuits that were before judge yes no please the court that is ruling that we thought it was asserted to bring to the  that it does not impact the soul of the let's talk about a few specifics because we need to think about whether we actually have power to act in this case and what we should do and so on so let me ask you start with this has there been any subsequent assignment from donnelly to c t p subsequent to the assignments that judge garbus was talking about that might now make you a patent owner on the assumption which i know you dispute that you don't judge garbus is right about your not having been the patent owner at the time of the initiation of those lawsuits yes th nine fifty three am i believe and then at a subsequent time period that afternoon or later that morning media innovation side and the rights to c t v innovations this was last friday isn't last friday ok but i thought judge garbus is ruling was that the patent was owned by van and there was no assignment from the hanta but were there was an assignment from donnelly but donnelly clearly had these patents and so last friday you're saying donnelly executed a new assignment to with the media and then media to you that is correct on  a you think that on the assumption that it was those assignments six days ago that made you the patent owner that the canceling claims of a patent in a proceeding that on those assumptions the actual patent owner at the time was not a party to trying to figure out what we need to do what we should do what we can do in these circumstances be it's your question directly under the regulations propagated by the novice man the director of the petitioners are required to not only twenty three forty two point one zero five is forty two point one of five the position in supporting evidence must be served on the patent under at the correspondents address of record of the subject patent what does that mean correspondence address of record in this particular case ya know the corresponds address was still listed with donnelly's attorney but the application or the actual petition referenced only owner of the patent but what impact would it be if if seek a fee was not in fact the owner at the time the petition was filed other words that the petitioner directed this to he t p s the perceived on earth at the address listed but what what what's the impact of c t p was not in fact the owner at that the impact may very well be that the the court would need to remain and this case with instructions to just mess all of the petitions that that is one potential impact of this their board added mischa if alternative would be but then but then what would happen then then presumably  the same petition against the same c t p and the betting office would issue the same ruling and we'd be back here again it is appellate position that we agree with you and that would be terribly inefficient and  waste of both parties in the courts resources to go through what have ben as indicated in the in the petition itself and there are people of color brief there are a number of appeals to that were recently filed on petitions where we were actually to begin the board declined to take them up that were filed against the d p innovation i suppose you could argue that well if c t v wasn't the owner at the time that's not a he is standing defect as he would have in the past in the district court where a party filing a lawsuit it was not the patent owner wouldn't have standing that the kodak as the petitioner certainly had a right to file a petition the patent office certainly had a right to act on the petition and the fact that the responding party may not have had title at the time it seems to me doesn't present the same sort of standing case or controversy issues that you would have in a district court setting so i think that you know you may be right that it really doesn't matter as long as in this court there's a case or controversy which means  how do we know that donnelly is not jumping up and down saying our patent has been canceled we were there that's got to be under the by ruling we do believe it is incorrect but in the interest of the fish and see some of these contests were filed in two thousand and thirteen and we're just now getting state discussing standard so whether we decide to  refile or appeal it's not we can get to the merits yes your honor thank you and so i'm clear on time was that part of my if it was unfortunate enough to get right to it you know and if you're saying things is just through nine i find them an unpardonable that issues whether the board unreasonably in arbitrarily fail to apply thirty seven c f r section four forty two point one two if the board unreasonably failed to apply this regulation the board incorrectly emitted into evidence the supplemental declaration of you know hans wheaton's which is exhibit one zero two four and the declaration of michael young which is exhibit one zero two three because it did so one with the motion that is required by forty two point one two three or two meeting forty two point one two three three four meant to show that supplemental information the supplemental information submitted recently could not have been obtained earlier if those two declarations are excluded three of the facts relied upon by the board to determine that apogee was publicly accessible and therefore proper art proper prior printed publication under section one o two were not publicly accessible prior to july thirtieth and the critical date and thus should not have been apogee itself should not have been considered the only fact that the board could rely on at that point forty two point one two three as relates to supplemental information both relevant and not relevant and supplemental evidence under forty two point six four b two resolution of this primary issue therefore is important not only to looking at the language a party seeking to submit supplemental information more than one month after a trial is instituted must request authorisation to file a motion to submit the information i mean the reply and i guess even the patent on a response right is going to be more than a file or reply instead in section three sixteen a there is a directive for the director to establish regulations for submission of supplemental information the difference between something mental information which is but there's the regulations say you get to do reply that's it well after whelm far more than a month after a trial is instituted regular course they don't have to meet that specific requirement here do they of one to three be for supplemental information to file a reply brief and make argument that is provided for within the regulations there is no reference within that regulation that refers this mission  evidence it needs to meet the standards of one two three that is correct on both relevant at the weights and then in the last hundred and fifty or two hundred  also in the gnosis versus south alabama medical science foundation case it's i p r two thousand and thirteen dash zero zero one one six which paper twenty nine at three says in the event petitioner files a motion to exclude supplemental information supplemental evidence is that which is provided subject to an objection to the other side you submit supplemental evanston the other side you do not file it with with the board however if you seek to follow it with the board any evidence that is not contained in the petition it is not contained in the patters response must come in a supplemental other there's good reason for this as explained the statute you must show if you're the petitioner that it could now have been raised earlier or why it was not raised earlier here that's a ours and we were passing out this piece of prior art suite a supplemental declaration and jaan supplemental declaration were submitted to were submitted to us in response to our motion to exclude saying that the deposition testimony that we submitted and where you go and all this i'm just trying to figure out why isn't right will that the board has a lot of discretion in regulating how evidence comes at and it was reasonable to allow this evidence and once you made a certain challenge that you didn't have at first there are two reasons for that first is thirty seven c f r forty two sixty section one two three which allows for supplemental information now the board may waive were suspend these rules and we don't dispute that however in this case there was neither request to waive the rule nor request to suspend the rule in fact the petitioners just filed the evidence which goes to a necessary part of their profession case status in the day they filed it and then you objected at that time we did it and then what the ports say the board never issued a non final action instead the board issued their final determination in which they determined that the motion to exclude both our first one and our second one were rejected because the evidence submitted went to the weight of the evidence and it was not based on an evidentiary rule it said that one reply evidence this is permitted and it ignored appliance action one two three and it said two that it wasn't actually supplemental evidence  three no your honor all evidence adduced i should have no discretion the habs discretion if there is a labor or suspension of the rules here there was no waiver or suspension of the rules they did not just everywhere they don't have the discretion to simply waive it by accepting it has to be a formal motion to waive and then a formal ruling on the motion to way if they just say this is relevant and under the circumstances we're going to we're going to hear it you know earlier submissions of evidence would challenge for example what's in this case if the board would like to propagate those rules they can make that rule they have the direct the other direction in the statute or they can make their own rules they have not made that rule and therefore to simply apply it here or there is arbitrary there is no rule in the regulations there is nothing in the statute that says reply advents is permitted outside of something making a motion to request it for supplemental information in fact that in the statute itself and section three sixteen that the board is to you provide mechanisms for proper provide mechanisms for the submission of supplemental evidence that's important does operate under the that it might very well apply under these circumstances to give the board the authority to accept this evidence in research in response to an earlier challenge your honor we would argue that they have exceeded that authority and it was arbitrary in the way that they evidence is only in response to a motion to exclude and therefore it's used for that basis it should be used outside so you have for lack of a better word a mess among the decisions citing what is supplemental evidence what is simple information and how it should be submitted and we would submit your honor that based on how they have submitted the lack of rules and it's an arbitrary an unreasonable failure to apply section one two three the morning may please the court before getting into the bottle this will address the the outstanding motion we do actually have copies of that assignment handy and if the court would like those copies the two sides can question of these there can i just double check is there any dispute about the correctness of that there's no dispute with respect against the motion that we service the petition on the correspondent address of the past record at the patent office that's what the rule requires the fact that we reference e t p in the petition we followed the rule and sometimes following this rule at the patent office doesn't seem straightforward because patents get assigned records aren't updated but nevertheless you send or you serve the petition on the current correspondence address litigations have been going on for years there's public commentary from our donnelly that's been released of magazines about their relationship with c t v so this is this is not a surprise to anyone and they're certainly pretentious standing so just to make it crystal clear it was served with your petition he whoever the patent owner of record was served with petition right have to go back and double check if that was our our donnelley whoever was the last firm to have prosecuted the case and enter an appearance the patent office and who was address of record was served because that's what the rule fires right but i guess your position now in light of what happened  related to constitutional standing but that that that's correct he determined to have the rights were not properly conveyed alternately to see g p but i believe both were separately certainly certainly well aware also the patent office simply requires a practitioner to come in and represent that they're authorized to to argue on behalf of the patent owner if you're not authorized you're risking your registration number so this is typically not something that the patent office looks into they expect that the records be kept up to date and they operate based on those records i just and again just to be clear so what's in my mind it does seem to me pretty important to nail down with some express statement maybe i don't believe they fell into it but it would be somewhat comforting to know that that's not what we have in night seems to me donnelly is the is needs to say something well i think that assignment that was executed within twenty four assignment that we're talking about the one executed on friday was from donnelly to see if there was i believe there was several assignments one was from donnelly to an intermediary ye donnelly to a media company and then on on to c t v well maybe i'm reading judge garbus is ruling incorrectly but on page twelve of his ruling he says donnelly purported to assign the rights to media however donnelly did not own the rights it purported to transfer hence ban continued to own the rights to the that and  because donnelly acquired bent this stock and not bent this assets at donnelley didn't own the patent and therefore it's purported assignment to media was ineffectual and then he goes on to say well ok on a more may twenty fourth twenty thirteenth banta executed a written assignment note pro talk donnelly of but then he says that disagreement as to whether judge garbus is ruling will withstand scrutiny but it's a ruling and as of this moment there's a ruling by this record judge that banter continued to own the rights of the at an ensuite and then he goes on even says you know you could cure this i having an assignment from vent but that hasn't happened so that's why i asked the question of whether this assignment that supposedly fixes problem came from bad and what i hear you saying is that no it came from donnelly it came from donnelly which now owns i think banta has been since some soon that my friend would be the better person to ask the relationship between oregon lee and bantam but presumably the assignments in executed last friday were to take your these issues as they filed a suit on monday against another company so presumably they they think you want to believe that they cure those issues well i think from the bar for all of these assignments the ones that are referred to by judge garbus or they all in the record i'm referring to an assignment that was filed but again as i said the notice of what has been going on here for the past couple of years was was well known to donnelly or pants so there's been no attempt to intervene at any point along this process at the pe have this been representations made in powers of attorneys filed that they're authorized to act on behalf of this fact and so again i think it's a question i know these things get technical maybe hyper technical but in the end there is some consequence if if title is not it is not proper and everybody could have all good intentions and believe that they did the parties that th that would have been your position that that proceeding was not a legitimate one and needed to be terminated i would think the proceeding is against the pattern not the pound on so there would certainly be some ethical issues if an attorney is representing that they are authorized to act on behalf of the patent owner but are not but in terms of challenging the patent itself i wouldn't see decisions there's no explanation in the briefing us why those decisions are wrong there's no explanation in the briefing as to why the board should not have accepted this evidence as a fair r governing standard for the submission of here evidence with every five because there's nothing else in the statute in fact nothing else even in the regulations about evidence with the proviso there isn't even a specific section that says the petition you have to infer that from these page limit rules it is somewhat odd but their view is if you're going to submit evidence for the reply there's only one authorization for that the supplemental information regulation even the statute uses the term supplemental information in three sixteen eighty three and the standard of you couldn't have submitted that evidence before just as simply unrelated to the issues here this evidence came in under under really two avenues properly which is number one as rebuttal evidence so it's fair game number two they objected to apogee declaration of misters so weapons and they filed their objections under forty two sixty four b one forty two sixty four b two says one in ten days as a matter of right you can serve the other side with supplemental evidence which is what we do the decisions that they cite to say forty two forty two sixty four b one so in addition to this being fair rebuttal evidence they actually ask for they objected to it we responded and filed her conserved supplemental evidence the cases they cite two for the proposition that there's some confusion is not any confusion between supplemental information supplemental evidence it's well if there is supplemental evidence and i serve it on the other side when do i get to file and that handy quilt case makes pretty clear the reason why the patent office has this rule of well you just serve it because we don't want it in the record if people aren't going to argue about it later so if you get an objection you have a matter meza matter of right you can serve the other side the supplemental evidence if they go forward and they file a motion to exclude you can file it in your opposition because now it becomes relevant because there's a dispute what you gave them evidently they didn't think you were the issue of supplemental evidence is an avenue of procedural avenue to get evidence in as a matter of right if there's an objection supplemental information is when you go to the board and you want to preemptively file something in that short time frame generally speaking it's it's very rarely used when it is used it's usually something from a patent owner because if you think about it the petition is granted there's institution the petitioners usually fairly happy there's nothing they want to get in at that point they'll wait for trial the patent owner may come in with some real parting interest information or something that they've become aware of recently that they think is important or some claim construction issue that came from the district court so the difference between supplemental information and supplemental evidence is that there are just too procedural avenues for introducing evidence one is a matter of right the other one you have to go and ask to file a motion for there's no confusion whatsoever this is the way thousands of these proceedings have operated the new face of case that was  know footnote to the extent there is any inconsistency just uses the term supplemental evidence can accurately meaning more evidence as opposed to the rule based supplemental evidence i'd also point out that that decision is not only it's non presidential but it was issued in two thousand and thirteen prior to genzyme prior to the build in case so it also includes statements in there that are just plain wrong such as the petitioner must put all of its evidence and arguments on the petition and it can't stray from it and so the senate needs to come into the record because there's a dispute later it's typically appended to the opposition for the motion to exclude there's no there's no dispute as between supplemental information and supplemental evidence and in any event the board's actual basis for allowing this evidence was has just a fair rebuttal of us nowhere is there any explanation as to why that's wrong as the record stands we have unrebutted testimony not only from distributed globally we follow those all the way through to the chain through the salesman and actually handed it out at trade shows uploaded it on his website so there's way more than  about whether or not the board abused its discretion but that was never even raised in their in their opening query so that's where we are with respect to  two thousand which may have very well cleared up this whole issue you know that's correct you're on of the issue in the district court related to earlier filings and constitution fourteen the petition name city innovations and if you serve someone if you serve the wrong person at the right house or serve no not on my understanding is they  submitted they serve the petition on both c t and i don't like a and suspenders thing they knew that you were at least you see t p claim to be the owner of the patent at that point having filed lawsuits and all but then they also according to the fall of the rule which is to serve the petition on whoever's the most recently recorded patent owner or the egg is the address  an attorney representing that matter which i believe at that time they are saying was donnelly so that's why i'm just trying to figure out if you happen to know or if you haven't spewed whether or not that second filing that second serving edition did or did not occur back then your honor i'm unable to answer that whether donnelly was served on that day i don't know and when are you going to decide whether or not to appeals that are now before the court is to if there is an appeal of that that may impact this and maybe that one should go before these before we go through all this work twice or three times and the alternative was sponsor could have is the language used on page thirteen transferred them directly to media rather than to dollars so i do not believe there is a stuart that donnelly owns the patents at least at least according to how this case may properly be decided here upon the last friday's assignment if it's possible within a week can you submit papers providing us the assignments and any explanation about why they are complete and effective to have this case decided it's always best if you can