RJM - Sci Ev Seminar - Fall 2010 Today’s Agenda Tyco – What happened today, what will happen Wednesday. Challenges to Expert Testimony: Daubert, MEMC, PharmaStem Simulation Projects – Where you are, where you are going 10/25/10 RJM - Sci Ev Seminar - Fall 2010

RJM - Sci Ev Seminar - Fall 2010 Tyco Trial Who attended today Lawyers: Darrell Experts: Brett, Keya, Jing, Lieven, Shenghan, Zubin Daniel (2nd half only) What happened Why no testimony was taken Motions/admissibility rulings Introduction to damages law 10/25/10 RJM - Sci Ev Seminar - Fall 2010

RJM - Sci Ev Seminar - Fall 2010 Daubert Before Daubert, expert testimony in FEDERAL COURTS was admissible if the methodology employed by experts in forming their opinions was ‘generally accepted in the relevant scientific community.’ This was known as the Frye standard. Frye v. US, 293 F. 1013 (DC Cir. 1923) Daubert (509 US 573 (1993)) threw Frye out for FEDERAL COURTS. Except sometimes. Key concepts: relevant scientifically valid reliable applicable to facts [NOT prejudicial] 10/25/10 RJM - Sci Ev Seminar - Fall 2010

RJM - Sci Ev Seminar - Fall 2010 Reading a Patent Remember, in a variation on famous words from 1992: IT’S THE _______ STUPID. CLAIM 10/25/10 RJM - Sci Ev Seminar - Fall 2010

RJM - Sci Ev Seminar - Fall 2010 MEMC and PharmaStem CLAIM LANGUAGE OF INTEREST: MEMC: “axially symmetric” and “substantially free of agglomerated intrinsic point defects”. Claim construction on phrase 2: “a concentration of agg. defects that is less than the detection limit of these defects...” PharmaStem: “in an amount sufficient to effect hematopoietic reconstituion of a human adult” You split about evenly between which was more unfair. Reasons for your choice? (Random 3 for each side) MEMC: Will, Jane, Miling PharmaStem: Zubin, Josh, Keya Lessons for Experts: Lieven, Jing for Lawyers: Norm, Darrell MEMC is more unfair: Will, Jane, Miling, Shenghan, Jing, Darrell, Tosin PharmaStem is more unfair: Daniel, Josh, Zubin, Keya, Norm, Lieven, Li, Zac 7 MEMC, 8* PharmaStem 10/25/10 RJM - Sci Ev Seminar - Fall 2010

Simulations – TEAMS. HTM rev 5 Team Lawyers Experts Patent FH ----------------------------------------------------------------- 11-15 A. Jumanji Norm%, Jane* Josh, Miling 6,628,382 TH on PAIR B. (ZL)2 Zac*, Zubin Li, Lieven 5,515,719 Received 11-16 WWJD Wyatt*, Will Daniel%, Jing 6,035,015 TH on PAIR [Allowed on 1st OA] 11-29 Dockets Darrell, Keya* Tosin, Shenghan 6,498,854 Ordered Meeting Times Taken: Wednesday, 10/20, 3:30 to 4:15 - ZZLL Tuesday, 10/26, 3:30 to 4:30 - WWJD Thursdays, 10/28, 11/4, 11/11, 3 to 4 - ZZLL Open: Day = 8 to 5. Evening = done by 10 pm. Week of 10/18: Tuesday day, Wednesday day or evening, Sunday day. Week of 10/25: Tuesday, afternoon or evening. Wednesday, day or evening. Thursday day or evening except 10:30 am to 1 pm. Friday to Sunday, day only. Happy Halloween. Week of 11/01: Tuesday to Sunday, day or evening. Week of 11/08: Tuesday and Thursday to Sunday, day or evening. Wednedesday, until 4 pm only. 5:30 pm 8:00 pm 7:00pm? [or 6:30 or 7:30] 7:00pm? [or 5:30 on, 8:00 latest] 10/25/10 RJM - Sci Ev Seminar - Fall 2010

RJM - Sci Ev Seminar - Fall 2010 Next Week Presentations on your patent and your legal issue Tyco - debriefing Q&A about legal issues Q&A about simulations and critique assignments 10/25/10 RJM - Sci Ev Seminar - Fall 2010