Trials@uspto.gov Paper 41
`Tel: 571-272-7822 Entered: August 26, 2014
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`DYNAMIC DRINKWARE, INC.
`Petitioner,
`
`v.
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`NATIONAL GRAPHICS, INC.
`Patent Owner.
`____________
`
`Case IPR2013-00131
`Patent 6,635,196
`____________
`
`Held: July 24, 2014
`____________
`
`
`
`Before: TRENTON WARD, THOMAS L. GIANNETTI, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MATT McCLEAN, ESQUIRE
`
`
`PATRICK BERGIN, ESQUIRE
`
`
`Davis & Kuelthau
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`
`111 E. Kilbourn Avenue, Suite 1400
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`
`Milwaukee, Wisconsin
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`
`
`
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`Tel: 571-272-7822 Entered: August 26, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DYNAMIC DRINKWARE, INC.
`Petitioner,
`
`v.
`
`NATIONAL GRAPHICS, INC.
`Patent Owner.
`____________
`
`Case IPR2013-00131
`Patent 6,635,196
`____________
`
`Held: July 24, 2014
`____________
`
`
`
`Before: TRENTON WARD, THOMAS L. GIANNETTI, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MATT McCLEAN, ESQUIRE
`
`
`PATRICK BERGIN, ESQUIRE
`
`
`Davis & Kuelthau
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`
`111 E. Kilbourn Avenue, Suite 1400
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`
`Milwaukee, Wisconsin
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`
`
`
`
`
`Case IPR2013-00131
`Patent 6,635,196
`
`
`ON BEHALF OF PATENT OWNER:
`
`
`MICHAEL GRIGGS, ESQUIRE
`
`
`SARAH WONG
`
`
`Boyle Fredrickson
`
`
`840 N. Plankinton Avenue
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`
`Milwaukee, Wisconsin
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`
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`The above-entitled matter came on for hearing on Wednesday,
`July 24, 2014, commencing at 10:00 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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` P R O C E E D I N G S
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`JUDGE GIANNETTI: Please be seated.
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`So, good morning, everyone.
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`ALL COUNSEL: Good morning.
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`JUDGE GIANNETTI: We are here for final hearing in
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`case IPR2013-01131, Dynamic Drinkware, LLC, vs. National
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`Graphics, Inc. I'm Judge Giannetti. To my right is Judge Ward; to
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`my left is Judge Weatherly. We're the panel for this hearing.
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`May I have appearances of counsel, please? Who is
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`appearing for the Petitioner?
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`MR. MCCLEAN: Yes, thank you. My name is Matt
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`McClean. I'm appearing on behalf of the Petitioner, Dynamic
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`Drinkware. With me is co-counsel Patrick Bergin.
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`JUDGE GIANNETTI: And who's appearing for the
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`Patent Owner?
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`MR. GRIGGS: Yes, thank you. Good morning. My
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`name is Michael Griggs. I'm from Boyle Fredrickson, representing
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`the Patent Owner, National Graphics, Inc., and with me is my
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`colleague Sarah Wong.
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`JUDGE GIANNETTI: Okay. So, Counsel, we set one
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`hour per side for this hearing. Each side will have an opportunity to
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`reserve time for rebuttal. The rebuttal of the Patent Owner is limited
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`to addressing the motion to amend, which should be -- if you are
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`going to address the motion to amend, Petitioner should include it in
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`your main argument.
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`Okay, I think we're ready to proceed. Any questions
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`from counsel?
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`MR. MCCLEAN: One question, a quick clarification.
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`You would like us to address the motion to amend --
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`JUDGE GIANNETTI: No. The motion to amend should
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`be -- I had that wrong. Motion to amend should be addressed by
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`Patent Owner; then you will have an opportunity to respond in your --
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`in your reply.
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`MR. MCCLEAN: In our second session.
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`JUDGE GIANNETTI: And then they will have a chance
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`to rebut that in their rebuttal.
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`MR. MCCLEAN: Okay, thank you.
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`JUDGE GIANNETTI: The Patent Owner's rebuttal is
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`limited to the motion to amend.
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`Okay. Who will be presenting the argument for the
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`Petitioner?
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`ready.
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`MR. MCCLEAN: Initially, I will, Judge.
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`JUDGE GIANNETTI: Mr. McClean?
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`MR. MCCLEAN: Yes, sir.
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`JUDGE GIANNETTI: You can proceed when you are
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`MR. MCCLEAN: Thank you.
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`JUDGE GIANNETTI: Just wait a second here. We
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`will --
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`MR. MCCLEAN: Do the judges have a preference if I'm
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`at the podium or at the table?
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`JUDGE GIANNETTI: I think that's up to you. I think
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`we have a preference for the podium because there's a microphone
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`there, so if that's not too inconvenient.
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`MR. MCCLEAN: Not at all.
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`JUDGE GIANNETTI: Let me -- just give me a second
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`here to start the timer.
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`Okay, you can proceed now.
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`MR. MCCLEAN: Thank you.
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`I'd like to reserve the last 30 minutes to address the
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`motion to amend and any reply arguments that may come up with
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`respect to the petition, if that's all right.
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`JUDGE GIANNETTI: That's fine. And we will try to
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`give you a warning a few minutes before your -- when you're into
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`your rebuttal time.
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`MR. MCCLEAN: Thank you.
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`Well, to the Panel, good morning again. My name is
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`Matt McClean of the law firm of Davis & Kuelthau from Milwaukee,
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`Wisconsin. I am here on behalf of the Petitioner, Dynamic
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`Drinkware.
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`We have submitted now a series of briefs and exhibits
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`that I trust you have had an opportunity to get through and review. I'd
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`like to use my time initially this morning to really summarize and hit
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`on a couple of key points.
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`The '196 patent, which is the Goggins patent that we put
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`for review, describes a process for incorporating a lenticular image
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`into a molded plastic article. As I think the Petitioner -- the Patent
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`Owner contends, admits, says in their patent, it does not involve the
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`invention of -- the creation of lenticular images; it does not involve
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`the invention of molded plastic, generally, or the introduction of
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`molded plastic to create in-molded image-like cups, like other
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`commercial goods. All of that stuff is long-developed prior art.
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`What the '196 patent claims to do is to address an
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`industry desire for the marriage of that lenticular technology with the
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`in-mold technology. And the '196 states as its key element, its key
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`invention on that point, the establishment of control over the
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`temperature, pressure, and turbulence used in the introduction of the
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`molten plastic, such that you minimize the distortion of the lenticular
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`lens, which is around the outside, and the degradation of the interlaced
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`image that is underneath the lens, the picture, the color, the effect.
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`Now, the problem with that with respect to the '196
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`patent and the reason we put it for review is that Mr. Raymond
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`already did that with his patent 7,153,555, which we put forward as
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`Exhibit 1003. We submitted the Raymond patent and claimed it
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`anticipated the '196 patent, and this Panel issued a preliminary
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`decision on that point.
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`Initially, when we put that position forward, the Patent
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`Owner came forward and said, well, no, it doesn't anticipate.
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`Mr. Raymond's patent, the '555 patent, does not attempt to control the
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`temperature, pressure -- the pressure, temperature, and turbulence
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`parameters that my '196 patent does.
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`Now, as this Board recognized, the '555 patent and the
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`'196 patent both have as their primary focus the minimization of that
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`distortion of the lens and the degradation of the interlaced image.
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`Mr. Raymond does it also by introducing molten plastic at some
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`temperature, pressure, and turbulence, and he provides a substrate to
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`protect that ink layer.
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`This Panel has determined that, in granting our petition,
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`that the claims 1 and claims 12 of that '196 patent are reasonably
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`likely to be anticipated by Mr. Raymond's '555 patent.
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`After that -- that was done in October of last year. After
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`that decision by the Panel, the Patent Owner was given a chance to
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`file a response, and they did so in January. At that time, they made no
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`further attempt to challenge the anticipation finding or offer any
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`additional evidence or argument regarding anticipation; instead, they
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`elected to focus their attention on claiming that actually, no, we were
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`first; we conceived of and we diligently reduced to practice the
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`invention of the '196 before Mr. Raymond's '555 patent was
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`submitted.
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`Now, the first flaw with this contention and with their
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`presentation in January is it is at direct odds with the testimony of the
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`actual named inventor. The actual named inventor was a gentleman
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`by the name of Timothy Goggins. Mr. Goggins was a long-time
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`employee of the Patent Owner. He left some years ago. The Patent
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`Owner has conceded in discovery, both written and in deposition, that
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`Mr. Goggins, of course, as the inventor, is the person most
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`knowledgeable about what went in and around and for the '196 patent,
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`how he did it, that process, that invention.
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`And Mr. Goggins, in a declaration that's been submitted
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`to this Panel, establishes that from his recollection, he didn't conceive
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`and develop the process embodied in the '196 patent until sometime in
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`the summer or fall of 2000. His provisional application was in June.
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`His utility application was in November of that year. Sometime in
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`between those two dates, he thinks he had it.
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`The Patent Owner has not seen fit to question
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`Mr. Goggins on these points to date. They have not submitted any
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`testimony from him that undermines his declaration. They haven't
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`submitted any counter or cross-testimony that might undermine his
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`declaration.
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`Instead, they have offered testimony from their owner,
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`Mr. Krause, and one of their other past employees, a Mr. Matt
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`Walker. Both of those gentlemen provide what they know about the
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`conception and reduction to practice of the '196 patent. Of course,
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`neither of them are inventors. They also -- neither of them -- see fit to
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`offer any testimony, any corroborating documents to show when
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`Mr. Goggins conceived of the invention that is embodied in the '196
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`patent.
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`They don't talk about when he had each and every
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`limitation that that patent contains. Their declarations are completely
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`silent on this point. We know only from those declarations when
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`Mr. Walker says he had the idea to test in-mold labeling using
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`lenticular images, which was sometime in December of 1999.
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`If we consider the invention as I initially described, as the
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`process of controlling the parameters of temperature, pressure, and
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`turbulence to protect the underlying image, that -- if that had to be
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`conceived of, nothing that we've gotten from the Patent Owner says
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`when that happened.
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`JUDGE GIANNETTI: Let me just stop you there,
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`Counsel.
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`MR. MCCLEAN: Sure.
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`JUDGE GIANNETTI: I want to ask you about
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`Mr. Goggins right now. Now, he was with National Graphics for 20
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`years, about 20 years?
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`MR. MCCLEAN: I think that's correct.
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`JUDGE GIANNETTI: So, he is employed right now by
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`a company called Pixalen?
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`MR. MCCLEAN: Yes.
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`JUDGE GIANNETTI: And they are in this field of
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`injection molding. Is that right?
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`MR. MCCLEAN: They are in the field of the creation of
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`the lenticular images. They do not do injection molding.
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`JUDGE GIANNETTI: But they are in this general field
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`of lenticular images. Is that right?
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`MR. MCCLEAN: They will make lenticular images that
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`will be injected -- that will go into the injection molding process done
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`by others.
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`JUDGE GIANNETTI: I believe that in his declaration,
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`Mr. Goggins said that his company, Pixalen, he's the studio director
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`for the company. Is that right?
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`MR. MCCLEAN: Correct.
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`JUDGE GIANNETTI: That his company is related to the
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`Petitioner. Can you elaborate on that?
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`MR. MCCLEAN: I can. Mr. Goggins was hired to
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`essentially run and create the Pixalen -- the Pixalen Studios
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`Enterprises as a -- as a sister company, if you will, or a subsidiary
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`company owned by a company -- owned by the ownership that owns a
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`company called Pacur. Pacur would be the umbrella that has
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`ownership interest of both Dynamic Drinkware, other, and Pixalen.
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`JUDGE GIANNETTI: So, you would say that it is a
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`sibling company to the Petitioner. Is that right?
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`MR. MCCLEAN: I would. I would.
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`JUDGE GIANNETTI: So, why should we give his
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`testimony weight? Isn't he an interested witness?
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`MR. MCCLEAN: I think he is -- I don't think he has an
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`interest in the technology being -- his old technology being patented
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`or not patented. He's got his system now in place. The credibility, I
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`think, comes with what can corroborate his version of events versus
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`what -- the lack of corroboration for what I would offer is the Patent
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`Owner's events.
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`If we're going to get into a credibility contest, I would
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`suggest we step back and say, okay, what do the other circumstances,
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`documents, and facts show as to who's probably right? And if we do
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`that, Mr. Goggins is -- is going to be unassailable.
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`JUDGE GIANNETTI: So, we have to take into account
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`the fact that Pacur is a common parent to Petitioner and Pixalen, when
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`we review Mr. Goggins' testimony, wouldn't you say?
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`MR. MCCLEAN: Well, I don't think it's relevant to the
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`IPR proceeding, but I can't get around the fact that there is a
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`contemporaneous infringement proceeding going on in the Eastern
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`District of Wisconsin in which Dynamic Drinkware -- not Pixalen, but
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`Dynamic Drinkware -- is a defendant. So, the invalidation of that --
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`of the patent here has an impact on that -- on that litigation, but that
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`impacts Dynamic Drinkware, which while related, Mr. Goggins has
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`no ownership interest, Pixalen has no direct financial interest in what
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`happens with Dynamic Drinkware.
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`They make images. Dynamic Drinkware makes, most
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`specifically, some of the file material that goes into the -- that will get
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`sent off to a printing company and make the sheets. Pacur sells the
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`sheets, and then those sheets become the lenticular labels.
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`JUDGE GIANNETTI: But isn't it true that there is
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`common ownership of these companies so that they are related in that
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`sense?
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`MR. MCCLEAN: Yes, but not by Mr. Goggins.
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`JUDGE GIANNETTI: But Mr. Goggins works for --
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`they both -- both your client and Mr. Goggins --
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`MR. MCCLEAN: He works for the common ownership.
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`JUDGE GIANNETTI: Right, work for the same
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`company.
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`MR. MCCLEAN: Correct.
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`JUDGE GIANNETTI: And Price against Symseksays
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`that's a factor we should look at in determining these factors.
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`MR. MCCLEAN: And I agree it's a factor you should
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`look at, but I think the -- the antedation argument is one that will be
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`advanced by the Patent Owner, and the question is going to be, do
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`they have corroboration to get around Mr. Raymond, who is not
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`affiliated with any of those companies?
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`JUDGE GIANNETTI: Well, you started your argument
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`by referring to Mr. Goggins, and I just wanted to make sure that the
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`record is clear what his interests are.
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`MR. MCCLEAN: He is related to the companies. He
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`does not have a direct financial interest in the outcome of these
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`proceedings, but his employer does.
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`JUDGE GIANNETTI: Okay, thank you.
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`JUDGE WEATHERLY: To what extent, if any, does
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`Pixalen do business with companies other than Dynamic Drinkware?
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`MR. MCCLEAN: I know they do some. I don't
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`represent Pixalen directly, and they're not a party to any of the
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`litigation, so I can't speak on that with any real authority, but Dynamic
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`is not their sole -- is not their sole customer.
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`JUDGE WEATHERLY: As far as you know?
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`MR. MCCLEAN: As far as I know.
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`JUDGE WEATHERLY: Okay.
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`JUDGE GIANNETTI: You can proceed.
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`MR. MCCLEAN: Thank you.
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`JUDGE WARD: Mr. McClean, actually let me ask you
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`one question --
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`MR. MCCLEAN: Sure.
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`JUDGE WARD: -- about a statement you made about
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`Mr. Goggins' testimony, and if I understood you correctly, you said
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`that Mr. Goggins testified that in the fall of 2000, he actually reduced
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`to practice the claimed invention of the '196 patent. Was that a correct
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`summary of your statement?
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`MR. MCCLEAN: Yes.
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`JUDGE WARD: And does the Petitioner agree with
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`Mr. Goggins' testimony, that the claimed invention was reduced to
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`practice in the fall of 2000?
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`MR. MCCLEAN: We do.
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`JUDGE WARD: Okay. Looking particularly at
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`Mr. Goggins' declaration, paragraph 21 of his declaration, he provides
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`a picture of a cup, which I would generally refer to as the fish cup.
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`MR. MCCLEAN: I know what you mean.
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`JUDGE WARD: Is that -- do you understand that to be
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`the actual item that constituted his reduction to practice in the fall of
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`2000?
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`MR. MCCLEAN: I understand that to be Mr. Goggins'
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`recollection -- and we have no evidence that would counter that -- that
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`cup, the fish cup, we provided some exhibits that sort of make
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`reference to it and the testing of it, and Mr. Goggins' recollection is
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`that cup came out of a molding session with a company called Grimm,
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`Grimm Industries, I believe, who was an injection molder, and that
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`cup was when he felt, "Voila, I've got it, this is what we've been trying
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`to do."
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`That cup -- that -- he didn't have that image until the
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`summer, and between the summer and when he submitted it with the
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`images affixed in his November 22 utility patent, he doesn't have an
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`exact date, but that's why I've given you that range, that by November
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`22, when it appears, as drawn, as a figure, he felt like this -- he used
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`that figure because that was when he identified a reduction to practice
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`of his invention.
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`JUDGE WARD: And is it the Petitioner's contention that
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`the compact case, which was created in March of 2000, in affiliation
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`with the company Rexam, was not an actual reduction to practice of
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`the claimed invention?
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`MR. MCCLEAN: That is correct.
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`JUDGE WARD: So, Mr. McClean, can you delineate for
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`the Panel the differences between that compact case and the fish cup
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`and why, in fact, the compact case isn't a reduction to practice, but the
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`fish cup is?
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`MR. MCCLEAN: I can. The compact case, which might
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`be present in the room, but it is a small -- you've seen the picture of it.
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`I believe it's a small piece of plastic, has a black bottom, a plastic
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`black bottom, and then a clear plastic cover that has the lenticular
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`image in it. And I would suggest don't take my word for it, take the
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`word of Mr. Roberts, our expert, who examined this compact case.
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`If you look at the compact case with the naked eye, the
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`image has very little -- I believe it is intended to change color. It has
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`very little change of color; some, it does have some, but very little.
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`The gate on that compact case folds over -- where it latches is kind of
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`a clam close, the latch comes around. There's a little plastic gate
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`there, a little nipple where the plastic -- the mold plastic would have
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`come in.
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`If you look at the image there, the -- the color is in kind
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`of a semicircle way blown away from that gate. That is degradation to
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`the lenticular image.
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`JUDGE GIANNETTI: So, how much perfection are you
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`requiring here? That's one of the problems I have with Mr. Roberts'
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`declaration, is that he used a very high-powered microscope. So, is
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`that the correct test?
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`I mean, should we be taking the word of an expert who
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`put these devices under a microscope to determine whether -- whether
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`there are flaws, or should it be something more related to how they
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`would appear to a consumer?
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`MR. MCCLEAN: I think we ought to probably factor in
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`both. I -- and what I've described as far as the blow-out is visible with
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`the naked eye, so before you involve the lens. The standard, I think,
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`ought to be not whether it might get sold to a young high school girl
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`who wants just to see the color, but whether, as the Board has defined
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`it, we've got an invention that claims to minimize the distortion and
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`degradation, which the Board has defined as functionally eliminated.
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`JUDGE GIANNETTI: Well, I wouldn't say that that's
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`exactly my understanding of our claim construction.
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`MR. MCCLEAN: Okay.
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`JUDGE GIANNETTI: We talk about the intended visual
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`effect, and "intended" I would think would mean intended for the
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`person who's going to use the product rather than an expert with a
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`300-power microscope. Would you agree with that?
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`MR. MCCLEAN: If that's how you would interpret
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`"functionally eliminated," then I would defer to your understanding. I
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`think the -- I think there's room for some review of both -- of both
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`here, and as I've described, you can look at the image and see it is not
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`a very good image in its -- in its manipulation. You can look at the
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`image without -- again, without a microscope and see the blow-away
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`at the gate.
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`When you look at the lens -- I'm sorry. When you look
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`through the microscope and you look at the lenticular lens, you then
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`understand why the image is very soft and doesn't change color,
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`because those lenses are flattened and melted from the heating
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`process, which if your desire is to minimize distortion of the lens, that
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`process hasn't been accomplished. From a skilled-in-the-art invention
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`standard, that hasn't been accomplished with that makeup case,
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`because the lenses are --
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`JUDGE GIANNETTI: But your contention is that would
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`be accomplished for the fish cup?
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`MR. MCCLEAN: And it was accomplished with the fish
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`cup. Now, that's me, the lawyer. That's also -- Mr. Goggins, the
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`inventor, felt the same way.
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`JUDGE GIANNETTI: I thought he said the cup wasn't
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`perfect. Didn't he say that in his declaration?
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`MR. MCCLEAN: I think he says it wasn't perfect, but he
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`says that was a reduction to practice to his satisfaction. The makeup
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`case was not. Mr. Walker, who originally said, when I saw the
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`makeup case in 2000, thought it was a successful reduction to process,
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`took one look at it at his deposition and recognized that it -- that it was
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`not, that it had these failings.
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`Now, that opens the question as to what happened to it
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`over a period of 14 years, but we don't -- we don't have an answer to
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`that.
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`JUDGE WARD: But, Mr. McClean, isn't the ultimate
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`question, then, the level of satisfaction that will be necessary when
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`properly construing claim 1? And I want to ask you particularly about
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`our construction of the claim limitation "minimizes any distortion to
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`the lenticular lens and any degradation."
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`Do you accept our construction as provided in the
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`decision to institute? Does the Petitioner accept that construction?
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`MR. MCCLEAN: I accept it -- I do accept that with
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`what was my understanding that it included a skilled-in-the-art
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`standard, not necessarily a customer standard. That was my
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`impression of it. If you are meaning to narrow it down to a customer
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`standard, I disagree with it to that extent. I think you do need -- I
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`think there is a place for -- when we're talking about what is the art,
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`we ask the people that know the art, and if they say it's not -- it doesn't
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`successfully show reduction to practice, I think that this Panel ought
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`to consider that.
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`JUDGE WARD: Mr. McClean, what is your proposal,
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`then, for the proper person of skill in the art with respect to claim 1?
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`MR. MCCLEAN: What's my proposal to create a
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`standard?
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`JUDGE WARD: You're saying that you don't agree that
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`it's the consumer. Define who it should be.
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`MR. MCCLEAN: I think the -- I think someone skilled
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`in the art. I think that includes people that would be familiar with
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`mold technology and be familiar with lens technology. I don't know
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`that it has to go to the level of microscopic inspection, but I think the
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`opinions of those who know it is -- are the opinions we ought to -- the
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`panel ought to consider.
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`I would note that if the contention from the Patent Owner
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`is that, well, it might be acceptable from a consumer standpoint, says
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`who?
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`JUDGE WEATHERLY: Is there any testimony of
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`record from one of skill, as you describe, regarding the degree to
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`which the images on the compact and the fish cup are functioning
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`properly from a -- just a naked eye kind of perspective?
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`MR. MCCLEAN: The fish cup, whether that's been
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`someone skilled in the art, that would be -- that would be --
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`Mr. Goggins has said that. I don't know of an independent
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`testimony on that.
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`JUDGE WEATHERLY: Okay, then Mr. Goggins has
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`testified to that effect.
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`MR. MCCLEAN: I don't think it was addressed by
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`expert testimony that's been submitted with respect to the fish cup.
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`JUDGE WARD: So, Mr. McClean, paragraph 23 of
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`Mr. Goggins' testimony, he states, "Even at this point" -- and I believe
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`he's referring to the fish cup. "Even at this point, the quality of the
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`lenticular molding is not perfect," as Judge Giannetti recalled. Does
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`the Petitioner agree that some level of degradation is allowed by claim
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`1?
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`MR. MCCLEAN: I agree that "functionally eliminated"
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`does not mean absolutely perfect, but I think Mr. Goggins' standard is
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`going to be a very high standard, because he's the inventor. He views
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`it as not perfect, but finally, it embodies what he was trying to do.
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`The -- the compact case, he didn't feel that way. So, if he's the guy
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`who's skilled in the art, his opinion is available.
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`JUDGE GIANNETTI: But doesn't a reduction to
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`practice necessarily bring in the intended use of the product?
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`Shouldn't the point of view be the intended user rather than the person
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`with the microscope, the expert, or Mr. Goggins testifying that it has
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`to meet a very high standard, near perfection?
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`MR. MCCLEAN: My contention would be that's -- that
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`would be the baseline level, right? Does a consumer -- is it acceptable
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`for a consumer? And we don't have any testimony that it would be.
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`But then I think for purposes of whether or not it's a successful
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`reduction to practice for a patent, we should look beyond what would
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`be the consumer purchase to whether it accomplishes what the patent
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`says it is trying to accomplish.
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`JUDGE GIANNETTI: The patent is directed to
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`consumer products. It shows the fish cup. So, shouldn't the point of
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`view be is it acceptable to the consumer? That's the intended user.
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`MR. MCCLEAN: Of the fish cup, I agree with that. I
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`think the fish cup would be acceptable to a consumer, and it passes
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`muster done by those who are skilled in the art. I think we don't have
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`any information --
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`JUDGE WEATHERLY: And the argument is that it
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`would be acceptable to a consumer because it is acceptable to
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`Mr. Goggins?
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`MR. MCCLEAN: Yes. I guess part of it would be
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`Mr. Goggins wouldn't sell the makeup compact; he would sell the cup
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`based on his looking at both, if that is -- if that is a distinction.
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`Now, I would -- I don't want to get away from the topic if
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`the Panel is concerned, but what ultimately -- where we ultimately
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`arrive with this particular technology is neither the makeup case nor
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`the plastic cup makes a difference when we're talking about
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`Mr. Raymond, because all that the Patent Owner has attempted to do
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`is move their date up as far as they can in an attempt to swear behind
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`Mr. Raymond -- Mr. Raymond's work, and that's how they arrive at
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`March.
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`If you accept -- I do not. If you accept at March 28th,
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`they picked up the compact case that they have given you pictures of
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`and I believe they've brought today, if you accept that that is an
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`acceptable reduction to practice, then the best they can hope for is that
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`March 28th, 2000, is the date that they reduced it to practice.
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`And all we know as far as conception is what we were
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`given from Mr. Walker -- not Mr. Goggins, Mr. Walker -- that we'd
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`like to try to mold one of these in December. Between December and
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`March, we have no information about that inventive -- invention
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`process. But what we do know, because we had the chance to depose
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`Mr. Raymond after the Patent Owners submitted their January -- their
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`January position statement to you all, was what Mr. Raymond's time
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`line was, and we submitted that with our demonstrative exhibits --
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`JUDGE GIANNETTI: Why do we care about
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`Mr. Raymond's time line? I thought this case was about
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`Mr. Goggins's patent.
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`MR. MCCLEAN: Mr. Raymond's patent is issued --
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`well, as you'll see, in December of 2006, but his application for patent
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`was done February 15th, 2000.
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`JUDGE GIANNETTI: His provisional.
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`MR. MCCLEAN: His provisional.
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`And if you work back from his provisional, as you might
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`imagine, he didn't conceive and reduce it to practice on January 14th.
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`JUDGE WEATHERLY: But that's not relevant.
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`JUDGE GIANNETTI: Why is that relevant?
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`MR. MCCLEAN: It is relevant only in that we get to --
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`we get to February with an actual patent -- provisional application --
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`JUDGE GIANNETTI: Right, at best.
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`MR. MCCLEAN: At best, fine, but we have -- we have
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`the history of how he did it, which is -- we don't have for NGI, we do
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`not have for the Patent Owner. But what we have is a patent filed in
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`February 2000, and, at best, a reduction to practice in March of 2000
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`for the Patent Owner.
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`JUDGE GIANNETTI: Okay.
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`MR. MCCLEAN: So, our contention, Mr. Raymond's
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`date is ahead of the reduction- to-practice date -- the conception and
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`reduction-to-practice date of the Patent Owner.
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`JUDGE GIANNETTI: Mr. Raymond's February date.
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`MR. MCCLEAN: Mr. Raymond's February date.
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`JUDGE GIANNETTI: So, why are we interested in what
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`Mr. Raymond did before filing his provisional? It doesn't seem to be
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`relevant to this proceeding.
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`MR. MC
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