You're watching FJTN, the Federal Judicial Television Network. The Federal Judicial Center presents Science in the Court Room, a series of programs for judges on science and scientific evidence. Program 3, Markman Issues in Biotech Patent Cases, a discussion moderated by the Honorable Fern M. Smith, Director of the Federal Judicial Center. Hello, and thank you for joining us for the third program in our series, Science in the Court Room. In this program, we'll address a number of thorny legal and practical issues resulting from the Supreme Court's holding in Markman versus Westview Instruments. We'll discuss these issues in the context of biotech patent cases and perhaps learn a bit more about microbiology along the way. But much of what we say will be applicable to the entire range of patent cases. Joining me for today's discussion are Judge Paul Michele of the Federal Circuit, Attorney Leora Ben-Ami, a partner with the firm Clifford Chance, Rodgers & Wells in New York, Judge Patty Saras of the District of Massachusetts, and Judge Roderick McKelvey of the District of Delaware. Let's begin with you, Judge Michele, if we may. And would you explain for us generally the Supreme Court's holding in Markman and what this does to the responsibility of the trial courts? Well, the court held that construing patent claims, much like construing statutory language, is a question of law as for the judge, not the jury, and is independently or freely reviewable on appeal. So it put a great burden on judges, particularly since patent claims have to be construed from the standpoint of people in the particular art or technological field. And of course, then the jury needs to be instructed by the court as to the meaning of the disputed claim terms. Okay, and Ms. Ben-Ami, you've litigated a number of these cases, and while the Supreme Court made clear the legal obligation for the trial court, it really didn't address the procedural issues at all. What have you found in going around the country that courts are doing in terms of scheduling and procedural matters? Honestly, they're all over the lot. Honestly, okay. And it can be helpful to understand what people are doing. Some judges do Markman hearings in the middle of discovery. Some do them at the end of discovery. There are some judges who do them as part of a summary judgment, and some do them as part of the pretrial. Still other judges will do them at the charging conference right before the jury comes in to deliberate. Some judges will do them purely on the papers. Others will have hearings, like a summary judgment hearing, and still others have an evidentiary hearing, like a mini-trial, so it really is very, very different depending on where you are. Okay, now where you are, Judge Saris, is in Massachusetts, and you've had a fair number of patent cases, what do you do in terms of scheduling, Markman hearings, and what kind of timing do you think is appropriate? Well, the first place to address the timing is at the Rule 16 Scheduling Conference, and I pull the attorneys in and I say, what about Markman? Do we have issues of claim construction? And often they say, we're not sure, or we're not sure how many claims, so they come in with lots of claims and then they can boil it down. So we sit down right there at the Rule 16 Conference and schedule in the Markman hearing. I find in general, the time it works the best is at the end of discovery, at the end of fact and expert discovery, is to schedule that Markman hearing in conjunction with the summary judgment motions. In that way, I have a sense of the big picture, what are the defenses, what are the issues here, the attorneys have really focused so they can boil down the number of claims that are actually in dispute, and at that point it's far enough before trial so that I can figure out the difficult technology and the parties can then prepare for trial in light of what I've ruled. The only downside is you sometimes need to have the summary judgment motions re-briefed because if they're like ships moving in the night, they essentially are not addressing the claim as you've construed it. So sometimes you need some re-briefing, but you need to give yourself enough time to be able to write the Markman opinion and explain how you came to the construction that you got, particularly if it's a hotly disputed claim. Okay, and do you find that the procedure you've just described works equally well for non-biotech cases as far as timing? Well, actually it's amazing to me. Every once in a while I get a patent that I can actually understand without any help and that's some basic straightforward technology. And sometimes even there, there's an issue of claim construction and the attorneys will say just settle this, just figure out what this claim means and we can maybe settle this dispute. So there I'll move it forward. Now try and do it earlier on. But the beauty of waiting on a very difficult case like a patent case or a computer case or something like that is that way I can learn the technology. I'm the one who only had biology my freshman year in college. I haven't done a lot of the science in a really long time. So I want to make sure I can get up to speed in the technology. Judge McKelvie, probably no court has a higher percentage of patent cases than the District of Delaware and you in particular have had a lot and I know your court has some established procedural rules. Do you agree generally with Judge Saras on timing or do you have a different point of view? I actually do mine a little bit later. I do my claim construction now. I set aside a day where I do pretrial conference in the morning, claim construction in the afternoon and then here's summary judgment arguments after that and that's all about four to six weeks before the jury trial. So it's probably a couple of weeks later in the process than Judge Saras does it. I tried it during the trial, found that very hard on both the judge and the lawyers hard because I want to take the time to think about claim construction and read the file history and I found that just hard to do. Tried to do claim construction earlier in the trials and found that also very hard to do earlier in the case meaning in the middle of discovery. I found it just too difficult to do. I didn't understand enough about the case. So I've settled in right now on cases including in biotech cases, trying to do it all in one day at the claim construction. And as I understand at the pretrial and... Okay and as I understand at Delaware tries very hard and it's pretty consistent about setting the trial date within 12 months after a case is filed. We try, there's a little slippage but we try to schedule a case so that it gets to trial within 12, 14, 15 months of the filing of the complaint. Okay. Ms. Ben-Ami do you find that the general procedures discussed by judges McKelvie and Saras are fairly universal or what do you see around the country generally in terms especially in differentiating between biotech cases and non biotech cases? I think in biotech cases the judges need more help. You need to get more background because as Judge Saras said most judges haven't had a lot of biology and it was quite a while ago. So people don't have the background to feel comfortable. And what I like to say is there are various ways to do Markman hearings but there needs to be what I call a period of intensity where you can get that tutorial. Judge McKelvie has tutorial tapes made by the parties where they explain the issues or a tutorial live tutorial or some means so that the judge feels comfortable that they're just not acting in a vacuum. I think that's very important for the courts. Do you have a lot of judges now requesting tutorials either live or by tape? Almost everyone now. Good. Well, I can be currently we're all learning something as we go along. Judge Michelle unfortunately a number of these cases wind up at your court sooner or later. All of them. And as you're reviewing the record do you notice any difference that timing makes in the dispute or do you have a sense of what might be optimal? I agree with what the judges here have said that after a fair amount of discovery but well before trial is the optimal zone. I think it varies some from one case to the next. That's probably why we didn't try to stipulate any procedures including on timing. And I think it's very interesting the stress put on getting comfort with a period of intensity and then also doing the analysis carefully in writing because when it does come to us on appeal which most cases do claim construction is always one of the issues. And even though the nominal standard of review is de novo we really don't start from scratch and construe the claims ourselves. We review the claim construction reasoning as explained by the district judge in the opinion. So having a clear line of reasoning there is enormously helpful. Do you get any sense in looking at these records as to what proportion of judges are doing Markman hearings at any given time early late? I think that it seems that almost everybody somehow connects it with summary judgment. We now see a great many cases where there's a grant of summary judgment and hence a pretrial appeal. So there is an opportunity requirement really for us to review the correctness of the claim construction before the case goes to trial. And so it seems like everybody has it pegged pretty close to summary judgment. There are lawyers who pressed to have claim construction done early in a case. Frequently a defendant will ask to have it done early. And in-house counsel will say that it can save a lot of money if we'll do claim construction early. I'll ask lawyers if they want to do claim construction early. If they both agree, we'll try to do it early. Sometimes it helps in discovery disputes understanding what the claims will mean. What do you do if one party gives you a pretty convincing argument that an early claim construction would be useful and the other party adamantly protests? Do you go with your feeling that it makes sense? I'll stay with my pretrial conference time. It happens that defendants will come in and say, you don't need discovery on the infringing product or process or tell us what the claim constructions mean first. And I'll allow a plaintiff to take discovery on the infringing product or process before we do claim construction. So my default mode is to stick with the pretrial conference. Okay. Judge Michelle, do you see many cases where the judge has adopted neither party's proffered claim construction but instead comes up with his or own version of what the claims mean? We see some of that. Usually it's more partial. There may be certain points on which one side's proposed construction was adopted by the trial judge, maybe on a few points the other side and once in a while a sort of a third approach by the trial judge themselves. But usually it's fairly clear cut on the critical claim terms that really drive the infringement summary judgment decision. As a lawyer, Ms. Binami, how would you feel if you weren't going to get the claim construction until during the trial and then the judge appeared on the bench and announced that the claim construction in fact was not what you'd asked for nor what the other side had asked for but was a whole new creature? You can imagine how it feels. The truth is it just leads to confusion. One of the goals of both the judges and the lawyers there is a consistency here. We want to try to keep things simple for the jury to the extent we can and when we have to argue the technology and the alternative, how the claims meet the products in the alternative, it just leads to a great deal of uncertainty for the jury. Experts will have to talk about things in the alternative and then if at the end the judge picks which claim construction he prefers, the judge may have been deciding the credibility of the experts and the jury finds out. So it just creates a lot of extra problems I don't think are particularly useful for anybody in this situation. Well, I know you've had cases before Judge McKelvie, before Judge Saris, before me when I was in San Francisco and before a lot of other judges given the fact that judges are all over the lot from the standpoint of the litigants and the lawyers, what do you think is the maximum time or the best time to hold a hearing? I think that for me, I would like it a little bit earlier than the pretrial because I'd like to be able to refocus my expert reports and I have a case in front of Judge McKelvie, so I'll be happy to do it at the pretrial also. But I think that if it's a little bit before the pretrial, it allows the parties to figure out if they need to do anything else in light of the claim construction. But it has to be well into the case unless it's an unusual case. Well, one of the advantages of the pretrial is you get this refocusing and it ends up being what I call a whack-a-mole approach which is that once the judge does claim construction, the parties will refocus and you'll do new claim construction and new claim construction. So one of the advantages of doing it late but before the trial is then the lawyers can't change their position and it forces the lawyers and the experts to come in with expert reports to deal with all of the potential claim construction so there's not a lot of shifting at ground afterwards. So this is a little bit of a benefit to the judge and a detriment to the lawyers in terms of timing. Do you allow the theory of shifting sands and claim construction? Of course I do because I want to get it right, Judge Michelle. As a trial judge, you say you want to get it right and if a party comes back and shifts, it's difficult because you can't just put it aside but I think the best thing to do is to force the lawyers to deal with what the different options are going to be and then do a claim construction decision. Now, one of the complications is you can pick one from A, one from B, one from C and then the lawyers will be a little unclear about it. Okay, briefly Judge Saras, what do you want to conclude with? Well, I think from a judge's point of view, the problem with Markman is it really has turned potentially a summary judgment hearing into two separate hearings. You have the Markman hearing, you construe the claim and then there's a summary judgment hearing and there's the horror that we all face of seeing these huge briefs and having to write two separate opinions which takes a long time. So I think our goal should be to try and condense as much as possible the Markman into at least the summary judgment if not the pretrial so that you're not delaying by three and six months the time it takes to write each one of the opinions and that's a hard thing to do. Well, that's helpful Judge Saras. We've come to the end of this segment. We'll be back in a moment. Judge McKelvie, Judge Saras has told us she doesn't have a science background. Do you? No, actually in economics in my opinion. Okay, so how do you prepare for one of these hearings once you've decided when to hold them? What do you do to get ready? Well, first I don't set a particular structure for the lawyers. I suggest that they reach an agreement on briefing and filing papers before the claim construction hearing. Then I ask them for a couple of papers. As I mentioned, I have the pretrial order already. I ask the lawyers to give me a copy of the file history so I can read it. I ask the lawyers to give me a videotape early on in the case so that I have a sense of what the technology is during the course of discovery. And then I also have the briefing on the summary judgment motions and so those documents all together, I'll sit down a couple of days before the pretrial conference go through them. And they pretty much get me to the point where I think I understand what's going on with the technology and prepared for the hearing that it will take place using the afternoon of the pretrial conference. Do you give the parties any parameters about the videotape, for example? Do you tell them you want animation? You want a lecture? Or do you leave it up to them? A couple of things to it. One, I include in my initial scheduling order the requirement that the properties prepare and file. We'll talk during the initial conference about it. Some parties are a little reluctant because it's expensive to prepare. I basically tell them I use this to educate myself, educate law clerks. I use it for a transition for law clerks each year that come in in August or September to find out what's going on in the cases. So that the parameter basically is if you think it's going to be helpful for me, that's fine. Usually they're filed under seal and I treat them as if they're a brief. It can be a lawyer talking. It can be animation. Generally, the things that are most helpful for me are the pictures. I find that the pictures help educate me is lawyers draw pictures about the technology. It brings me up to speed much more quickly than trying to pour through the briefs. Or at least it helps me pour through the briefs. Okay. And Judge Saras, I know you and Ms. Banami had a case together. What kinds of things did you ask her and opposing counsel to do to help you get ready in that case? Well, I knew I was in trouble when the first thing that the parties gave me were two huge textbooks being used at Harvard Medical School. And I said to them, I'm the one who went to law school, not med school. And I took a read through the summary judgment motions at some point and the motions preliminary injunction. I said, I don't really understand this. I just fundamentally don't understand the technology. So what I asked the parties to do and they were terrific at doing it, was to teach me. And I found it most useful to be taught as like having a private tutorial. They each brought in professors from some of our area schools and some of them were undergraduates. Not necessarily postdoc undergraduate professors like there was a professor from Wellesley College. There was one from MIT and they came in and they taught me. They started at the beginning, DNA, and they worked all the way through. And I found that that gave me the tools to even understand the legal arguments and to understand the technology because after all it was cutting-edge, Nobel Prize-winning technology. So the other thing is I can't emphasize enough this use of video tapes because I forget things. You're onto a criminal case. You're onto a securities broadcast. You're onto other things and you forget when you're writing. And I would sit there just replaying and rewinding the tapes. You know, what's the technology? What is the issue here? And so that a month down the road while you're writing it up, if you say, gee, I don't really understand that, you can go back. So I think it's important of the video tapes. I love being taught in court and being able to ask questions. And finally, I found it was useful. I actually went back to those Harvard Medical School treatises just to understand basic term definitions. And I found if you have that, we all know how to learn and they can teach you how to learn. And that was an important piece for me in that case. We'll never get those books back, will we? I'm still hoping one of my kids goes to med school. Ms. Ben-Ami, is that the procedure you tend to follow in educating most judges? I think there are a few ways that it's done right now. Oftentimes, judges will say, come together and find a mutual expert just to give us a tutorial. But then it's a pure tutorial.  That'll be more focused on what the issues are in a case because a pure tutorial will not necessarily say, and this is where the dispute is. A focused tutorial might be helpful. Other times, the lawyers will do a tutorial. It's our job to explain the technology to the jury ultimately and then lawyers should be able to explain the technology to the judges. But one way or the other, I say most judges want a tutorial. And are they typically on the record, off the record? Both ways? Both ways. Both ways. People are doing it all different ways. Okay. Judge Michelle, when you see these cases coming up to you from your perspective, I mean, you've heard what Judge Saras and Judge McKelvie do to get ready. And obviously, they look at a variety of extrinsic material and intrinsic material. What do you think the trial judge ought to be looking at and how should the trial judges be using those materials? Well, first, I think to get the background about the invention and the technology itself, the trial judge should make use of any sort of source that seems useful. Expert witnesses, textbooks, anything. With respect, however, to construing the actual disputed words and phrases in the claim that are likely to drive the infringement finding, they have to be a little more careful. There's a cardinal rule that you cannot contradict clear meaning in a patent claim on the basis, for example, of the testimony of an expert witness. And there is also a sort of a hierarchy of preferred sources where the claim at issue is perhaps first on the list and then next the surrounding claims and next the written description and then the drawings and then the prosecution history and maybe cited prior art and so on down until you finally get to the expert witness who came into the case long after the patent issued. And that, of course, has the problem that competitors can only look to the patent to know what's forbidden and what's permitted and therefore testimony that arose only in the course of litigation wasn't available to warn anybody and so that's the least preferred source. But if none of the other sources will adequately illuminate the understanding in the relevant art at the relevant time of a particular term then as a last resort the testimony is perfectly permissible provided it doesn't contradict clear meaning discernible from the patent documents itself. Okay, all right, thank you. And Judge McKelvie, within that framework, what do you do to get inside into the specific disputed terms and how do you winnow the large number or what appears to be the large number of disputes down to something that's manageable? Actually, the lawyers end up doing that. They'll arrive with the case early on. It may not have a sense of how many claims are going to be an issue. I do a couple of things in terms of trial management. One, just in terms of getting the case to the jury, I'll force the lawyers if I can to eliminate certain patents or certain claims so that we have a certain representative group if there seems to be too many. Second, I found that in the Markman briefing, that is the briefing before the hearing that the lawyers will find out that they don't disagree on certain terms. So I've even had, during the course of Markman hearings, lawyers say, oh, I didn't understand it. We agreed on this term or those terms and then they'll essentially get it down to two, three, four terms that the judge will have to resolve the dispute between the parties. Okay, and do you hold your tutorials, I guess? I do videos early. But do you have a separate tutorial segment and if so, do you have it on or off the record? No, I do. I received the videos early on in the case. And then for the Markman hearing, I just tell the lawyers, you've got two hours. You can put on what you like. I have found that since Vytronics and Pitney Bowes, the two federal circuit cases, lawyers have been very reluctant to put on extrinsic evidence. But I invite them to put on evidence about the infringing product or process, bring in expert witnesses if they'd like to. Lately, I've found that what's happening is the lawyers are coming in and presenting argument. They do, in essence, the tutorial on the technology, the tutorial to get me up to speed on what the terms are that are in dispute and how they believe I should decide on one way or the other. Okay. It's rare now that I get witnesses during Markman hearings. You know, it fascinates me that neither of you have a particularly scientific background nor do I nor do the majority of judges on the federal circuit. So we have to do a similar learning experience for purposes of claim construction to what you've done in the pretrial phase. And we depend primarily on the lawyers and on the district judge's opinion as opposed to more technical or scientific treatises or things of that sort. That's very interesting because I think a lot of people assume that virtually everybody on the federal circuit has a PhD in some very esoteric science. So it's comforting to know that you have to struggle the same way we all do. Judge Serres, do you find, as Judge McKelvie does, that there are fewer and fewer cases in which testimony is being offered or are your cases different in some way? Well, the area in which testimony is being offered is where there's a dispute as there often is as to what people of ordinary skill and the art at the time of the invention would have construed a claim to mean. And that's the toughest area, I find, in general in the Markman hearings because sometimes you have wonderful experts on each end. We sometimes call them bookends and they just happen to disagree. They're not hired guns. They disagree as to what 1979 eight-term meant. And to give another example from this one, biotech case, there was a dispute about what the term gene fragment meant. And it was not a defined term in the patent. The literature cited in the patent and the pictures gave an ambiguous picture as to what exactly it meant in my opinion. So I had to go to extrinsic evidence which is a less preferred kind of evidence. And it was actually a dispute between two leading people as to whether it meant a single-stranded DNA molecule or a double-stranded DNA molecule which was important to one of the main issues in the case. I had hired a court-appointed neutral expert, a woman whom both sides agreed on and we did it on the record to help me through it. And essentially what I said to each of them was I didn't just want their opinion as to what it meant but it was a show me. Show me where... Give me an article where they used it as a single-stranded or a double-stranded. Help me through this as to not just what you understood it to mean but what did the community understand it to mean? And that's the toughest area. I think you do often need to go to extrinsic but it's got an unclear status in these Markman hearings. It does and maybe Judge Michelle you can help clarify some of it. You wrote the Vitronic's opinion which is widely cited and then we're also involved in some of these other cases. Would you tell us what the current status is if you can on intrinsic versus extrinsic? I wrote not only Vitronics but also a follow-on case called Pitney Bose. So I guess I'm the problem. You're the target. I think that the basic dichotomy between extrinsic and intrinsic evidence is okay as a starting point but it can end up being confusing. There's nothing inherently always wrong about extrinsic evidence and there is no flat rule in our case law that the construction has to be based entirely on intrinsic evidence but there is a preference for intrinsic evidence because that's what the competitors could have gone to look for at the time of patent issuance. And as I said I think the best way to think of it is as a series, a sequence of preferred sources starting with the patent document and then working downward from there as far as you need to go. Much as Judge Sarah said if you can settle it, the dispute can be settled from the face of the patent document. That's the way to do it. If it can't then you have to go to whatever sources you can go to. I do think there's a great preference for sources that existed at the time and that were widely available to the public like technical dictionary or articles or patents of the time as opposed to sheer opinion by experts and I think the biggest thing to watch out for is who is the expert. For a long time we saw innumerable cases where the record was the testimony of a patent lawyer or a former patent commissioner construing technical terms in a patent when the law says it's supposed to be from the standpoint of the practitioner in that field not from a lawyer standpoint. So I think a lot has to be thought about who are the legitimate witnesses not only what is their ultimate source. Okay, Ms. Benami as you go around the country do you think this concept is clear at the trial level or do you see some confusion or at least difference among trial judges and their attitude towards intrinsic versus extrinsic? I think most judges right now feel that intrinsic evidence is safe and extrinsic evidence can lead to reversal. It's just fair. I think we need to separate out what experts can do because there is a way that I think experts are very useful but it's still guiding you in the evidence that existed at the time. It's not useful necessarily for an expert to say this is just my opinion. I was there and I think this what an expert can do that I think is very helpful for the court is to guide you through the intrinsic evidence when it says this in the specification that the plasmid was made this and this in this way well yes that's there it's on the face of the document but no one knows what it means you still need someone technical to help you understand that. Go through the prosecution. What did the prior art mean? Go through the literature of the time. What did that mean at the time? And not necessarily say well it's just my opinion. And so there's a difference there. Okay, one of the most neglected sources I think of claim construction are patents that are cited in the patent that's being enforced as being the relevant prior art because in a certain sense they're almost incorporated by reference and it's very convenient to be guided through them by the attorneys or by somebody giving a tutorial because then you don't have to spend a lot of courtroom time hearing live testimony. You can sort of walk through the key phrases in those cited patents. One thing that happens is lawyers will tell you at Mark Winner before there's certain things you can't hear certain evidence that can't come in. For example evidence as to the infringing product or process or testimony by experts. And I think that's a misreading about vitronics and Pitney Bowes because I think it's very helpful for a judge to not just understand the technology but to understand the case or controversy. That is, why is it that these terms are in dispute and is it a genuine dispute or not? So I don't think judges should limit what information lawyers can give them. They may want to limit what they rely on in terms of reaching a decision as they write out their opinion on claim construction. I think that's the key. We've never reversed a judge for what they admitted. We have reversed on a few occasions where they relied on extrinsic evidence to contradict rather clear meaning discernible in the patent but we've never reversed for what they admitted in order to get whatever benefit it had. Well that's comforting, helpful and I'm sure that reassuring to a lot of our audience we'll be back in a moment with our next segment. Let's focus on the conduct of the hearing itself now. Judge McKelvey in recent years the courts, the trial courts have been given not only the responsibility for construing patents but also gatekeeping responsibility and assessing the reliability of expert testimony. Do you see these two cases crossing paths and patent issues that come before you? Very rarely do I see Dalbert issues come up in patent infringement cases. Actually the time I do see them come up is in the context of infringement issues where a party is presenting testing expert testimony but not in claim construction. My sense is patent lawyers are happier to do cross-examination at trial rather than try to knock an expert witness out early. Okay Judge Michelle you mentioned something about the judges gatekeeping responsibility in Pitney Bowles. Do you see this issue coming up at all in patent cases that you review? Certainly not the come-ho kind of issue because usually both experts have very very good credentials. There's no equivalent of junk science. You don't see junk patent theories. So I just don't think that we have that kind of a problem. We really have a different problem which focuses more on what can you rely on and in what context rather than what can you listen to if it would be helpful to understand the technology or the invention or the background of the lawsuit. And there it's not really a gatekeeping function. It's the final step in the construction analysis. Given that let me let me turn to you then, Miss Ben-Ami and ask this. We don't have reliability problems. On the other hand all of us have seen cases where you have two blue ribbon experts wonderful credentials and yet the bottom line is they disagree over the meaning of an important disputed term. How do you wind up with these dueling experts and what happens is the best way to resolve them? I think there are a few important points. Number one, it's rare in a patent case that you'll get an expert witness for either side that's completely off the reservation. They tend to be people with very high credentials. Number two, they don't tend to have black versus white differences. They tend to be gray. They're overlapping and then the fringes are a little bit different. And that's the problem for the judge I think is to tell who's being the strict constructionist, who's being the broader constructionist and we have to remember they're often going back 25 years in time and reading articles and trying to say how would that affect the community because you're not asking them what they thought. What would the community have thought? And that's really the difference. All right, Judge Saras, you've got a case before you. You've heard the testimony from these two experts and this is the situation that you have. There's a critical term and basically their answers are different and it's up to you to make the magic critical decision. How do you do it? Well, this is the toughest area in the Markman hearing it. The law is uncertain on this subject and it's hard to figure out what exactly to say. It is not a question of burden of proof. This is at least theoretically a question of law so you can't resolve it based on burdens of proof. You also are sort of treading in difficult territory when you start talking about credibility. I find this one more credible or this one less credible. At least on the few times, I don't have as many as Judge McKelvie that I've had to come into this area. I think the safest is my statement before, which is show me, which is finding an undisputed basis in the record for what the community was thinking at the time. That isn't always easy because it's often a new area. That's why it's a patent and it claimed an invention. But if at least you can find not just what the opinions of the experts are but where it exists in the generally available literature or patents, I think you aren't pretty safe grounds. I think you're on the least safe grounds when you start turning it on credibility. I think that's true. Judge Michelle, from the standpoint of the appellate court, however, when you look at it and say, this is a question of law, is it correct that despite that, there are certain factual underpinnings that the trial judge is simply going to have to deal with? I think the Supreme Court and our court has acknowledged that there's a factual aspect of the underpinnings and really just insisted that the final step is pure law like statutory construction. But I don't think that credibility is very often the determinant. One good sort of a guide or default rule or tiebreaker is if a particular proposed construction would leave the preferred embodiment described in the written description outside the scope of the claim, that can't be right. So that's one good beacon to navigate by. And I think that context is critically important. And the correct construction usually makes a lot of sense if you put it in the context of the whole patent, of the other claims, of consistent use of terms. And I think the best single set of show me documents are the particular patents and articles that are cited in the patent being asserted because they are close in context whereas other articles that could be mentioned by experts may be in a very different context even though in the same field of technology. Judge McKelvie, you'd mentioned the fact that you get fewer and fewer experts testifying now in Markman hearings. But for those judges who do, and based on your past experience, what do you do when the inventor is one of the experts and the inventor says, this is what I believe the term means or this is what my opinion. Is he a lay witness? Is he an expert?  Well, I look on the inventor and I allow the inventor to come in and testify as one skilled in the art. I know there's some case law on it that says I have to be careful about the extent to which I rely on it but I don't preclude a party from offering testimony from the inventor in part because I don't know exactly what the inventor is going to say until I have a chance to hear the inventor and hear them on direct and on cross. But I'm pretty careful in light of the Federal Circuit case law, I'm pretty careful about the extent to which I'll cite and rely on the inventor in claim construction matters. Okay. Something that judges are using in different ways is the neutral expert or the third party expert. I mean, not a third party but a neutral or outside expert. You've had some experience with that, Judge Serres. How did you use this process? Well, I found the technology so difficult I wanted someone who was going to be neutral and the parties, luckily for me, agreed to pay for the expert because to my knowledge there's no separate pot of money sitting out there. So the parties here agreed to pay for the expert and they agreed upon a person. It was a longer process than I thought because different experts have ties to different organizations but they agreed upon a neutral person and she wrote up, she was a postdoc and she wrote up a report on her construction of the claims and she helped me ask questions to some extent of the other experts as to the basis for their opinion. That was the good news. The bad news was that they wouldn't agree to let me do it off the record. Everything was on the record and I was worried that it would be unfair for me to discuss with her in an ex parte kind of way what anything meant or even just some basic technology terms. So it was more stilted that way and I think that the attorneys usually play an important role in teaching experts how to teach me and no one taught this woman how to teach me. So she often talked at levels that were higher than my understanding so that it was not a perfect use of an expert. I think I'd work on it a little differently. I think I'd twist arms a little more heavily to try at least to have some ways for me to help her at least coach me. Tell her how to get it down to a level of a non-scientist but on the whole I think that's a safer approach unless you can get the parties to agree for ex parte communication because otherwise I think there's some issues on the ex parte. Judge McKelvie, have you had any experience in using either a court-appointed expert a technical advisor? If so, what's your view and how do you feel in particular about the ex parte issues? I haven't done it and in no case have the lawyers asked me to do it and I'd actually be very concerned about ex parte communications with an expert. It makes me nervous and I know it makes the lawyers very nervous about the information I'm getting about the technology. So for example, we don't go head to the library very often to get technology books or other information. I'm assuming the lawyers know what they want me to know and because of having lawyers on each side I assume they'll be able to educate me as to the matters and issues. So one, I don't do ex parte communications with experts and two, on court-appointed experts I've had lawyers tell me that it just adds a layer of expense and uncertainty to a case that they are reluctant to ask me to do. So actually I haven't done either. I'm open to it. I may not sound like it, but I am. If you were for whatever the reason to go check some books out of the library, is that something you think needs to be disclosed to the other side that you've looked at a particular reference book and even what pages you've scanned? This is critical. I think it's fair. If it's critical, if I'm going to, certainly if I'm going to cite anything in an opinion and rely on it and tell the federal circuit here's what I look to, I think it's very important to tell the lawyers because they could say right up, Judge, you're looking at the wrong year for the textbook. And I think it's very important, but I haven't done that. And if it did become critical, I certainly would tell the lawyers I had a time before I relied on it. How about from the standpoint of the advocates, Ms. Ben-Ami, what has been your experience in having neutrals or other parties brought into the litigation? Well, I've had all different ways of this being done as well. In Judge Saris' case, we had a Rule 706 expert. And I think that if we did that again, it would be useful for the parties to get together and give a tutorial to the expert. This was the same expert Judge Saris had referred to. Because we have to be, the scientists are very good when they're in their labs. Now you bring them into a courtroom and they're not on their turf. And it's not really fair to them to sit them down in a courtroom. They have no idea what lawyers are doing. They have no idea why the questions are relevant. Why are you focusing on 1984? Why are you focusing on what's in the patent documents as opposed to something else? And I think you need to give the scientists a tutorial so that they're just not a victim in this whole process. And that's not fair to the scientists. I have had technical experts who act as a technical clerk, for example, to the judge. That is very difficult for the parties because there is no record of what is transpiring. And if it's impacting the judge in any way, there's no record for the parties to understand what's going on. That troubles me a great deal. Other judges have used special masters to help them. They've been rejected at times. It's very expensive. I'd hope that the judges could give the lawyers a chance first to try it their way. And if the lawyers aren't doing a good job, you always have another chance. Okay. Judge Michelle, is this something you see raised on appeal frequently if at all issues or disputes over the use of a neutral or an outside expert? Almost never. There's a lot of talk about it at conferences and in articles, but I very rarely see it done. And as far as I can tell, it doesn't need to be done except maybe in some very unusual circumstance. From the standpoint of reading appellate records, my favorite expert witness is a university professor who's testified in some previous patent trials, knows the patent, law background, and knows how to explain to non-scientists what's going on in the field. Okay. Ms. Ben-Ami, have you ever run into a situation where the judge has a point at a neutral over the objection of the parties? No, because the judges recognize the cost and how uncomfortable it makes everyone feel. Okay. And let me ask you one closing question for this segment. If you were a judge, what do you think would be the most important thing to hear from the experts? Where do you agree? Thank you, Ms. Ben-Ami. That concludes this part of the segment. We'll be back in a moment. Let's talk now a little about how Markman fits into the case as a whole. Judge Michel, often the way the court construes the patent is going to determine whether or not summary judgment will follow and be granted or denied. What does or should happen next at the Court of Appeals? What are the chances, for example, of an interlocutory appeal at that stage? Well, as for interlocutory appeals, we've had several dozen requests and to date we've never granted one. So I guess we have to assume the prospects will be slim to none. I can't imagine a case, but I think it's a rare case where it would be justified. Part of our problem is just that we already have a big backlog and this would only add to it if we took those cases. Of course, if summary judgment is granted with respect to infringement overall, then the losing party has a right to review and then the claim construction is taken up immediately without the expense of trial. But there may be a lot of cases where the trial can't be avoided. Do you think or do you see instances where you feel a summary judgment as motion has been granted, perhaps on a somewhat shaky basis simply to get it up to your court? It's hard to know exactly what all the circumstances were, but we do see some summary judgment cases where the analysis is very shallow and that's not helpful. Most of the analysis is very careful and we take it from there and even though it's a de novo review, we rely very heavily on the analysis of the trial judge. Another issue that I know concerns a lot of trial judges is the perceived reversal rate when a case finally does get to the federal circuit and there are comments that the reversal rate is 40%, 50%. Is that in fact accurate and if so, is that unusual? Well, there's a footnote that says it's over 40% and maybe it's a good illustration of the evil of footnotes and opinions. But we have made a careful count in recent years of the actual reversal rate on just unclaimed construction. The overall reversal rate is around 45% on at least some issue, reversal in part. But reversal rate on claim construction is only about 25%. So the widely stated reversal rate is actually not true. It's only half of what is said. Okay, well, that's good knowledge to know and I hope we'll be somewhat reassuring to trial judges watching. Ms. Benami, what do you think the litigants think of the process as it works now? What is their satisfaction or lack thereof? It's been an interesting development because when Markman came out, the patent bar all said they'd be out of jobs. There'd be Markman hearings and that would decide the entire case and no one would ever get to trial. The truth is that Markman is just a step in the process. It may lead to a finding of no literal infringement but not likely to a finding of no doctrine of equivalence infringement. It may raise more validity issues but it's now just a staggered part of the process and people look at that way. Well, another part of the process is preliminary injunction motions. Judge Serres, how do you mold that into the case as a whole as far as timing and how you view them and approach them? Does it mean another hearing or set of hearings? Well, that of course is your nightmare when your court and deputy comes in and says there's a group of attorneys downstairs that wants to have a preliminary injunction. Right away, you're forcing all these careful measured steps that you have to construe a claim into a very rapid period of time and I think that enhances and makes it likely it's going to make a mistake so that my first goal will be to look at it and see if there are serious technology disputes, serious claim construction disputes. Do I even understand the technology well enough to see whether it infringes? And if I can't make a genuine assessment that there's a likelihood of success, I go no further and I deny the motion for preliminary injunction. I think that frustrates attorneys who think they're going to go in for a quick hit and I know that time is money in a lot of these areas where the technology is moving so quickly but the bottom line is we have to make sure that the likelihood of success is there and that's too hard to do quickly so I tend to not do that but then I'll try and move the trial much more quickly than I would otherwise do to get a faster resolution of it and in general the attorneys have been willing to work with me on that. Judge McKelvie, what's your experience on preliminary injunction motions? The experience in Delaware is pretty similar which is I think the trial judges are pretty reluctant to grant preliminary injunctions. I know when I get them and they'll come in certain types of cases, pharmaceutical cases and electronics cases. I try to talk the lawyers out of presenting a prompt preliminary injunction application under the theory that I'd like to give a defendant a little opportunity to take some discovery on validity defenses among other things. It gives me more time to focus on the technology and other issues so I'll see if early on we can talk the lawyers into having a trial in three or four months as opposed to 12 months. One of the little interplays here is between the trial judge making decisions on claim construction and on probability of success versus the parties presenting a case to a jury so that one of the issues is are the parties going to give up a right to a jury to get a prompt trial or would they hold off on it? Ms. Benami, what do you do strategically on this issue? When do you file preliminary injunction motions and why? Preliminary injunctions are successful where there's been a prior adjudication usually. If somebody who had strong bargaining power went ahead and took a case and tried to invalidate a patent and it wasn't invalidated, it gives comfort to the judge where it's a real copyist. Someone just took your patent and just copied it. There can be circumstances where it's really necessary but by and large it says the judges have said judges don't want to do it. On a biotech case, have you ever been involved in a case either winning or losing where a preliminary injunction was granted? I did have one where we won but the judge it had been previously adjudicated and the judge gave us a mini trial so that's a little different situation. What about at your level Judge Michelle? Would you see these and how do you, if so, what is your reaction? We see a fair number of preliminary injunctions both granted and denied and of course they're reviewed for abusive discretion so that they're rarely reversed on appeal whichever way they came out and my rough impression is about half of them were granted and half of them were denied so from that sense I don't think that it's rare for them to be granted but it may be rare in particular technologies. That was going to be my next question. Do you see that these occur more often in certain types of patents than in others? I think they occur where it's clear cut an injunction will be granted where it's clear cut whether you have outright copying or where you have fairly simple technology so that you don't need a huge sensitive claim construction exercise before you can make a pretty good prediction of who's going to win at the eventual trial. So it's not the industry that's determining it but really more the history of the litigation. I think it's more the facts of the case although I think the more complex the technology probably the less likely to get an injunction. Let me ask you another question when it comes to reviewing a case what's your reaction when the findings or the judge's conclusions have been done orally from the bench versus a written opinion? Do you see major distinctions in the way the federal circuit views these cases? Well, I don't know that I can show a difference in the outcomes but from the standpoint of our comfort level I'd always rather have a written opinion not necessarily terribly long but written rather than oral from the bench. There are some trial judges who are exceedingly good at being very very clear and very thorough and still concise from the bench but most people can give a much better explanation when they've had a chance to write it out. Okay. And now finally Judge McKelvie you have a number of these cases that do go to trial. When you get to trial what do you do with the claim construction? How do you use it in the trial itself? The place where I put claim construction is in the final jury instructions where we have the claims set out and I will for example after a particular words where there's been a dispute as to the meaning of the words I'll put brackets in typing out the claims put brackets in and say by that we mean or that is the following and then I'll quote it in the jury instructions. All right. And in these cases there are often a number of terms that are complicated. They're not common terms but the parties don't have any dispute between themselves about what those terms mean. How do you let the jury know what those kinds of terms mean? Generally we have preliminary jury instructions that we give the jury at the beginning and actually we pass them out type them up and pass them out and they'll have attached to them a glossary of terms glossary of technical terms where the parties agree on the meaning of the terms while they may not be the types of words that the jury might understand so we'll define them and agreed upon definitions then we'll actually also attach a glossary of legal terms such as for example the words file wrapper or other words that may come up during the course of the trial. All right. Thank you. We've come to the end of this program. While there are different views some of the major conclusions are the following. First, timing for Markman hearings depends on the case but generally speaking the most optimal time will be after most discovery has been done but well before the trial date. Second, judges need not be afraid of science. There are a variety of tools with which to learn especially the experts. Utilize them all. Third, you have latitude and discretion to hear both intrinsic and extrinsic evidence. Just make sure that your findings point out what intrinsic evidence you utilized in order to reach your conclusions. As we said in the beginning although we've used a biotech case as a model the concepts and principles discussed apply generally to all patent cases. The Federal Judicial Center is very grateful to all of our panelists for giving their time and sharing their experience with us. We hope this helps those of you who are watching and encourage you to check the FJTN Bulletin and the Center's DCN site for the schedule of other programs in this science series. On behalf of the FJC thanks for watching.


The universe is a big place. Huge in fact, and rather complicated.  To help you survive it has to work hard to make sense of things. It does have some clever tools to help it achieve this. It can turn experiences into symbols, recall sensations and identify patterns. But most mental tricks take a lot of energy and so your brain takes shortcuts. For example it will seek out ideas that confirm what you already suspect. It will find the ideas of people you trust to be more appealing than those of people you don't. It will take your own experience and treat it as evidence. It will blur the lines between what you feel to be the case and what you know to be the case. Most of the time these tricks serve us so well we're hardly even aware of them. But sometimes they mislead us. The biases which can be so useful can also blind us. And in a complex world of differing opinions it's hard to know when to think using shortcuts when to put some effort into using our heads. Thinking doesn't always need to be hard however. Logic is a useful way to identify ideas that are likely to be helpful. Logic is a way to combine ideas to come to a conclusion. It's like maths, only it can deal with more than numbers. You've probably used it already. Think about the last argument you had. Did it go a little something like this? But everyone else is allowed to go, why can't I? A logical argument would be structured, all people are allowed to go, I am people, therefore I should be allowed to go. Logic is a useful way to combine established ideas to support the acceptance of a new idea. Looking for logic in an argument can help you decide whether you should agree with somebody or wait for more information.


Item No. SCP-1486 Object Class Euclid Special Containment Procedures SCP-1486 to be kept in containment locker 392B at Site-46 Following Incident 1486-8, a 55-meter spherical radius to be demarcated around SCP-1486 as an area in which absolutely no copulation is to occur. Description SCP-1486 is a children's doll, 48 cm in height. SCP-1486's animate, however, due to its nature, is mostly immobile. SCP-1486 is highly damaged and is missing its right arm. SCP-1486 will frequently exude human blood, feces, pus, and cervical mucus from small pores covering its torso and head. SCP-1486 is seemingly sapient. If a fertile human couple of opposite sexes completes copulation within 50 meters of SCP-1486, regardless of contraceptive use, SCP-1486 will disappear from where it has been placed and appear in the female subject's uterus at less than 0.01% of its original size. SCP-1486 will then begin solely increasing in size to the rate of a normal embryo and fetus. For financial and ethical concerns, testing regarding the subject's body's acceptance and nourishment of SCP-1486 has not been performed. For more information, read Dr. Fulnin's paper, SCP-1486 Hypotheses regarding the placenta and immune system. Ultrasound testing of the subject has shown that SCP-1486 retains its shape throughout the growth process. Subjects may sustain damage to the uterine wall, causing infertility. Conditions from SCP-1486 will exit through the cervix. After a period of 9 months, SCP-1486 will induce labor in the subject. SCP-1486 may be birthed normally, however due to the presence of several harsh edges on the exterior, cesarean sections have proven to be a much safer form of delivery. Once it has been birthed, SCP-1486 will search for the subject's mother and in some instances, SCP-1486 will attempt the breastfeed unless restrained. SCP-1486 can communicate verbally through unknown means and will address the subject and others. Attempted to abortion results in SCP-1486 rapidly expanding, causing the subject's adamant to rupture, SCP-1486 will be immediately hostile. SCP-1486 was discovered by Foundation operatives following a complaint submitted by ████████████ after an ultrasound imaging session. SCP-1486-1 interviewed SCP-1486, interviewer Dr. Fulnan, forward, SCP-1486 had recently been birthed and was sitting with D-7397, its mother, at the time of interview. D-7397 had been sedated and was unconscious. Begin log. Hello, SCP-1486. Hey, doc. Long time no see. Indeed. Nine months, if I had to guess, laughs. How's it hangin'? It's fine. Mind if I ask a few questions? Shoot. Alright, who or what made you? Well, doc, when a mommy and a daddy really love each other or are really fuckin' drunk. Please answer the question. How do you think? My mama got laid and I happened to be the fastest sperm. Alright, how did you become damaged? Being born isn't fuckin' easy. You can get pretty torn up. I think I would know that better than anyone. Okay, so this woman is your mother? Yeah, this woman here is my mama. Might not be the best-looking, but she's got the best hits I've ever seen. So you've seen tits before this?  What about all the times you've been or born before this? What? You don't remember being born before this birth? Well, yeah, of course I do. Were the women those times not your mother? I thought they were, but they would scream and throw me away. How could they be my mama if they would do that? They gave birth to you. Well, yeah, but I mean, they hate me.  Enough to hurt them so much. Lots of mothers. It doesn't make any sense. How could they just throw me away? How could they just hammer it in like that? Well, I mean, I just don't get it. 1486. Can we stop, please? End log. Closing statement. Examination of SCP-1486 following the interview showed a severely increased excretion. Examination of cervical mucus from the area surrounding its eyes. SCP-1486 was separated from D-7397 and placed into storage.


Viper is a vehicle innovative powertrain experimental research facility built at the Army Corporate Laboratory of ARL at APG in Maryland that helps develop transformational knowledge to advance next-generation rotorcraft transmissions. A rotorcraft vehicle would be anything that's powered with a rotor similar to a helicopter, a tilt rotor, like the V-22. It could be a UAV. One of the main benefits that's going to come from having Viper is going to be the ability to exercise novel transmissions, new concepts that are much lighter, that may have multi-speed capability, and it's going to allow us to explore different platform configurations, different types of transmissions. Within ARL we have a wide variety of diverse expertise. We have folks who are doing artificial intelligence and we bring that to bear on the predictive maintenance problem. New technologies like additive manufacturing. We're actually looking at additive manufacturing of some sub components for critical and low bearing aspects of the aircraft that heavily impacts readiness for future aircraft and also affordability. There's a lot of historical data that's been gathered over the past 20 plus years of these rotorcraft in service. We realize there are gaps in that knowledge of how these rotorcraft transmissions perform and we're looking to fill those gaps with the science and understanding we generate here at Viper. Viper engage with academia, industry, and across the Army to be able to deliver new technology for the soldier for drivetrain or aircraft systems. The drivetrain is the heart and soul of the helicopter. It's where the power is delivered from the engines to the actual rotors and the other control surfaces and effectors that allow the aircraft to fly. We can put actual loads on real drivetrain systems without actually flying the aircraft and that's what makes this facility so unique. We now are able to actually assist in speeding up the development of some of these new technologies because we can do it on the ground where it's much safer and where we can observe everything in a highly censored environment and get all sorts of data that wouldn't necessarily be available on an actual flying vehicle. Right now the data that exists comes from systems in the field, operational helicopters that land and then we download the data. These are all healthy aircraft. These healthy rotorcraft don't provide any signals for us to analyze to be able to pick out what a tooth crack in a gear may sound like or what's spalling or pitting on a bearing sounds like. So then Viper gives us the chance to listen to what an unhealthy component sounds like, you know, with all the acoustic sensing instruments and accelerometers and we can train our machine learning algorithms to detect the early signs of when a failure is about to occur. That's just going to improve Army readiness. Army needs advanced rotorcraft technology to increase the power density of a transmission to make it lighter weight and to be able to enhance endurance and payload for the soldier. The rotorcraft transmission represents a huge fraction of the weight of the vehicle and every pound of weight that we pull out of the transmission is another pound of payload or sensor or soldier that we can put on the vehicle and improve our maneuverability, extend our reach. This is a big deal for the Army. We're going to advance a lot of science and understanding about transmissions with this facility. We collaborate on a continuous basis with the Aviation and Missile Center and they're really excited to explore new materials and new configurations on Viper. One other role that the corporate laboratory plays is to engage with industry and academic partners through our business model open campus. It's a way to quickly transition the scientific discovery into the industrial base and when we do that we're actually speeding the the whole process of getting new technology into the hands of the warfighter. The academia may be interested helping the Army solve an Army problem because it's tangential to their problems. We all have very common threads of wanting to increase power density in a transmission so that we can increase payload and range for the soldier and for any platform that flies across America. A lot of academia aren't able to build up a research facility with this type of magnitude with two 1,000 horsepower inputs and a 2,000 horsepower output to absorb the main mass, 250 horsepower to absorb the tail rotor. There's a lot of power flowing through the transmission. When we can have the facility where we understand the science directly tied to concept exploration, concept development, then we can really start to go after operational impact going from science to concept to operational capability. We expect that what we're doing here today and the experts that will be using this facility today will give us capability in the future that will actually benefit and give transformational capability for the warfighter.


Hey guys it's Julia and welcome back to my channel and for today's video I'm going to be talking to you guys about kind of a reflection of my goals from 2019, booktube related, books related, channel related, and then also my channel goals as well as my book goals for 2020. I didn't make a video in 2019 talking about my goals but I know I definitely talked about in certain videos about some of my goals for 2019. A lot of them I did not fulfill which is okay. Some of them I was close but first off is the Goodreads challenge so in 2019 I set my challenge to 60 and I went over that so I did complete that. It's not as much as other years at all but I'm very I'm still happy with it because there was just this year was a lot for me. This year was just a huge learning experience and just in terms of like going to uni turning 18 like doing some adult stuff so like learning how to do stuff on my own living on my own a lot of stuff like that so it's been a big year. I'm getting out of high school stuff like that a big year for stuff like that so I am still happy with the completing my Goodreads goal. The goal I did not complete was to hit 20k. I said it at the end of last year and I didn't set it like perfect like two I wasn't strict about it but I was like it'd be cool to get to 20k and I'm at 19.2 so I'm there I was very close but I didn't hit quite hit that mark yet I don't think will happen in 15 days so probably did not complete that one but I'm still very happy with how my channel has grown. My channel has been inconsistent a little bit this year. One of my goals probably from last year was also to upload more and that's always a goal is just to upload more consistently and upload more content for you guys. In terms of quantity I didn't upload that much and especially recently with uni and I've talked about that in previous videos so there's no worries about that. In terms of quantity it's not that much and this year like other years have uploaded way way way more this year in terms of quantity again didn't really fulfill that. In terms of quality I think some of my favorite videos that I've done have been this year so I've done some really fun videos that I'm really happy with I've done some cool halabs that I'm happy with and I just feel really great about the the videos that I have been putting up I feel good about and they've been well received and stuff like that so I feel good about that. Also looking back on the year I've been doing videos about more more things than just books and more things that I care about so I've been talking about tarot and I've been talking about my crystal stuff and I've been talking about movies and TV shows and fun stuff so you guys have seen some different content on my channel and some of you guys really like it and I'm hoping to also do more journaling videos in the new year because I always mean to do them and like I do journals just I never film it so I'm hoping in the new year that's one of my goals is to show you guys more kind of journaling and productivity stuff and that because I freaking love that stuff and it also super motivating to watch because I love watching like planning videos or like even cleaning videos but there will always be books up on this channel so no need to worry about that my goals for 2020 feels really weird saying that is 50 books I'm just gonna set it as that I always said to that 50 and if I hit 50 I set it to 100 it's what I do every year so except last year because I didn't I hit 60 and I just left it which is 2019 not last year it's not the new year yet okay I'm going to set my goodreads challenge to 50 books for the year of 2020 we'll see how that goes I do count graphic novels and manga and things like that I am starting to count textbooks because I've read a lot of textbooks with uni we're gonna start counting them like if they're on goodreads I'm counting them with that I am hoping to hit 25k I just think that's a cool number I'd be really cool if I hit that number I don't have to but I just feel like that's a good goal to set for myself in terms of like number counts just to update my social media a bit more so I want to be more active on YouTube and commenting on other people's videos too because I've been totally slacking with that the past few months with uni I just don't like the last time I watched a video it's been a while since I've just sat down and watched a book two videos been a bit so I want to get back into that and like get back to like supporting I want to support my friends more too on Twitter and Instagram and stuff like that I want to update my social media more I want to be more I want to be more involved in the community for sure I am interested in hosting a different readathon I don't know if I'll create one or if someone asked me to help post another one my goals is just to make more content that I'm proud of last year I think it was a really good year for me in terms of just the quality of stuff I just really liked what I posted and it was well received in things like that so I'm hoping to continue that trend in 2020 I want to get more into more into vlogging in the new year because I used to love it and I think it's also an amazing thing to look back on also my vlogs are the one thing that people constantly ask for other than Stephen King videos which I will probably make some up actually I just need to read them I don't know I feel really weird filming I haven't filmed in the setup in a while and it's just like just thinking but this is like a really video that doesn't have much of an outline to it but I just kind of want to talk to you guys about like my 2019 and how that kind of went for me in terms of reading and channel and stuff and how 2020 I want to go so I want to be more involved I want to get to 50 books I want to hit 25k like these are all things I would like to do and then I'm gonna strive towards yes those are my goals for the new year in terms of my channel where things are going and all of that stuff I am going to be doing a channel feedback survey like I did last year so in the description box please click the link you'll see a survey and it's just gonna be a lot of multiple choice about what you like on my channel what you like seeing what you want to see in the new year what videos you really appreciate stuff like that and also ways I can make improvements that's all gonna be in the description box for you guys if you would like to fill it out last year I had a great time with it and a lot of people filled it out and it was super great to see and hear off your buddy's feedback because some people just don't comment they just don't comment they don't like or they don't like some people just more silent viewers which is okay but you just want to hear sometimes I just want to hear your guys opinion of the stuff so this is like a really good way I found last year to do that and to for more of you guys to kind of give your thoughts so I'm super excited I hope you guys have had a good year in terms of books and well in general but in terms of reading and channels and all that stuff let me know how you did down below if you fulfilled any of your goals for the year any goals for next year or any specific books you want to read next year but thank you guys so so much for watching and I'll see you super soon bye


Chris Farley served 10 years in the U.S. Navy, but his service to his nation continues. I'm a cemetery caretaker, and we're responsible for the maintenance of the cemetery, the grounds. We also do the burials. For Farley, keeping these graves and these grounds clean is a job that hits close to home. My father was a marine aviator. He was a fighter pilot. In fact, he's buried right there. Every service member's career begins with raising their right hand and taking the oath to serve their nation. For Chris Farley, that oath continues with his work at the National Memorial Cemetery of the Pacific, making sure his fellow veterans rest in peace with honor and dignity. Petty Officer Jerome Johnson, Honolulu, Hawaii.


Welcome to Access to Trader, the number one community for those who are committed to taking control of their trading in order to achieve success, profitability, and longevity. Thank you for joining us. Here's Dan Shapiro to help you find your edge, master your process, and own your future. Hey guys, good morning everybody. Welcome to another edition of theAxisToTrader.com weekend update show. Hope everybody had a great week of trading. Crazy action. We'll get into that in a second. If you are brand new to the channel, thank you very much for spending your time with us, listening to unbiased opinion of what we believe or what I believe is going to happen in the market while taking a very mature and responsible take. And being fiscally assured that you are looking at the market the right way. So if you are brand new, guys, please like, subscribe, and share the channel. And thank you very much for all your support. So let's talk about it. Usually there's a phrase that goes along with small caps, right? For all you guys who would do dabble in the small cap market, there's something called the parabolic move. Remember, like the parabolic, the best way to describe it. The most recent stock that went like parabolic, if you guys remember, was that TOP that literally went from like $6 to $260. That's where you use the word parabolic. It's very rare that you turn around and go, wow, the cues went parabolic. But that's exactly what happened.  Technology names have been absolutely on fire. If you look at the scoreboard, the Dow only went up about four-tenths of a percent versus a 3% move on the Nasdaq. And that's after giving back a little bit on Friday. Incredible, incredible moves in many, many stocks. Everything basically broke out this week. Everything went parabolic in the last week and a half or so. And you can just see it on the charts, one by one, yet Amazon going nuts. The video is definitely the biggest one, just one out of its mind. Google went, I mean, look at Google. I mean, look at them. We'll get the individual setups, I think, for next week, what I think might happen. Yet one day of a 10% run on Netflix. And again, there's really no news that is validating this move. You could turn around and say, well, there is this whole discussion on the debt ceiling. Guys, again, if you're watching, if you're trading brand new in your first two, three, four years, I'm doing this 24 years, going on my 25th year next year. They've been talking about the debt ceiling since my mother-in-law learned how to ride her first dinosaur. This has been going on forever. They still have not put a situation that the government has been closed for three, four days. It's going to get done. The deal is going to get done. They're going to raise the limit again. Listen, is it anything's possible? Of course. This could be the one time they don't do it in the market. The market comes in. But the point is traditionally, if you go back to history again, I don't know what's going to happen. I'm not in the guessing game. I'm not here to be right. But traditionally, they've been raised the debt ceiling. We had a little program clause on Friday with negotiations, but it's going to get done. I think the way traditionally the history has been played out, it's going to get done. It's going to get done. It's very tough to turn around and say, well, this is just a big run-up. It's just all excuses. We don't know why this is a big run-up.  We just like it. We like it. Every stock is breaking out. Even the stocks that are playing catch-up, they finally broke out. Meta, Apple, we've been talking about all week. The semiconductor names has been going out of their minds. Even Tesla, finally woke up and reclaimed the 50-day moving average on Friday. Again, we'll get to other pittance in a second. But I remember last year when the Nasdaq was down 30% and the QZ was down 31%. In 85% of the year, we were standing below the 50-day moving average. Traders were saying, well, I'm going to be in cash. I'm going to be in cash. Okay, you're in cash. Miss some great downside action. Okay, cool. You're in cash. Teach his own. I'm not judging. And now the same trader is that this market is absolutely running. They'll say, well, the market's only being pushed up because of five stocks. Listen, at some point, you have to commit to the trade or not trade. There's a lot of very famous analysts. John Madden is probably the most famous one. But you're not going to get paid. You're not going to develop your career by sitting on the sidelines and trying to wait for the perfect pitch. You're never going to get the perfect pitch. It's like somebody looking at real estate and saying, well, the interest rates are too high. Now the interest rates are being cut. I'm going to wait for lower interest rates. It's never a perfect time to buy your dream home. Your dream home is your dream home. Just buy it and enjoy it and create memories. And the stock market is exactly the same way. You're never going to have that perfect setup with 200,000 shares on the offer that they're going to lift, and then the stocks are going to go up $7. Maybe that happens once the blue moon. Maybe it doesn't. But there is no perfect scenario in the market. The market is supposed to make you feel uncomfortable. It's supposed to make you second guess everything. That's the whole point. This is why so many people have so much struggles in the stock market. And over time, slowly but surely that goes away. But at some point you have to kind of decide what your level of participation is in the stock market. And right now we are on an absolutely fantastic run. Absolutely fantastic run. Do I believe the market's a little ahead of itself? Absolutely. If you guys remember I started on the Wednesday video, I started talking about I want to leave all the really high flyers alone. Like in the videos of the world, the Google, the Amazon, the world. Has there already had their runs? I was more concentrating on Apple. If you guys remember Apple and Tesla and Meta, stocks were coming off the bottom of the channels. And those are the stocks that broke out and continued to run while their names like Nvidia a little bit got gassed out. And there is a situation that I could see in front of me that there is an exhaustion cycle developing. Now all of this exhaustion cycle is, let's look for example at Google for example, right? So all of the exhaustion cycle is after a big, big run up, the stock is just tired. The same way they continue to sell the stock. Like here's an example here in February, right? So February they had this big, big run, right? It just got tired, okay? So it came in for the next two weeks, and the sellers finally exhausted themselves and the stock went back higher. It works exactly the same way, the opposite way when the market has a big, big run. So if you look at Google for example, Google in the last two weeks has gone from 104 to 126. That's a pretty damn big move, right? Put in this inverted hammer, which basically is telling you it's tired. It's not the top of Google. It's not, this is it, the 2023 highs. It just means for a cycle, right? Whether that cycle is one hour, one day or a week, we don't know, but it just shows you there is a lack of commitment at these levels. That's it. And the stock organically needs a comfortable level to back test a little bit just to kind of at least test the five-day moving average, as you can see off this orange line and create a new base. That's all it is. And I think a lot of stocks going into this week are facing a lot of the same characteristics. Google definitely one of my favorites going into this week for a potential back test. You have NVIDIA, right? NVIDIA had a really, really big run. There was a nice little pivot. We had Friday to the downside. We'll get to the pivots in a second. But I'm looking for stocks. And again, it doesn't mean it's every stock, but I'm looking for stocks that kind of like, oh, I need a break, right? I need a break. I need a couple of days to kind of, you know, just get my win back just to relax a little bit to kind of maybe set up for the next move up. And I think it's just healthy.  To come out and go, yeah, I can't be chasing stocks up here. And that's the last thing which you want to do. And when you get a parabolic move like we saw, you know, like we saw Wednesday in the Thursday session on the Qs. I mean, just from Wednesday, check this out, guys. Just from Wednesday, we went from 327 to 338. $10 for just in a 12-hour cycle.  And again, this is one of those scenarios we want to watch going into the next week, that if they are tired, we are prepared off at the bottom of the range so we can take advantage on the downside potential back-test move. So here's the levels I'm watching for next week. Guys, on the Qs, watch this 335 level, right? That's Friday's lows, okay? So if we could start building below 335, which is Friday's lows, I think there's a shot we back-test into the five-day. What's cool about the five-day is if you want to establish a new long position, that's the area you want to bounce the market. Because if you look at the Qs, every single time they hit this orange line, which is the five-day, what happened, right? They bounce, they bounce, they bounce, they bounce, they bounce. So if we can get a 335, a scenario we could play both ways. So if we could get a 335 breakdown in the Qs, then we could possibly get a move down to this 331, 332 area, and then you could cover your short if you are that aggressive which bias back to the long side. It's just such a scenario that I want to play out. Same thing with Google, same thing with a name like Google, for example, right? Just if one goes, they're all going to go. I definitely want to watch the bottom of the range of Google. Again, if you are brand new to technical analysis, inverted hammer is, that is what he's word bearish, but it's a short-term cell signal. So if you see, you know, if you see, like there was an inverted hammer here, the next couple of days started rolling over. Let's see here where there's an inverted hammer here, the next day went down. There was an inverted hammer here, the next day we went down. So it doesn't mean we're going to go down for three weeks. It just means that a cell signal has been put into play and you can take advantage. Maybe it lasts for one day, maybe it lasts for one hour, maybe it lasts for one day or one week, one month, we don't know. But at least we are prepared for that channel. So Google starts confirming down the bottom of the range. Sure, maybe it could mirror the Qs and go down to the five-day as well. Same thing with the video, right? Same thing with the video. We had a nice little pivot on Friday on the video. I'm watching the bottom channel on the video as well. If this starts losing the bottom channel, here's the five-day moving average as well. So that's the short side, right? That's the short argument because, again, we always want to be prepared on both sides. There's still a lot of really good-looking setups to the upside. I mean stocks that are still coming off the bottom of the range that didn't fully participate in the rally or they're just still relaxing. Like Layla, let me give you an example, right? Uber. Uber's a really great-looking move, right? Uber had a phenomenal move, talking about a massive, massive move. And like what we just discussed a couple of minutes ago about a stock just gets tired, right? Uber got tired. Just think about it. It ran from 29 to 39 in two weeks. And here it just got tired. So what happened the next couple of days, kind of the thesis that I have for a couple of these names going into Monday, it got tired and it gave a sell signal that started coming into three, four days. Now it rebounded, right? Reclaimed the five-day moving average. And now it's just kind of basing here on the top of the range here. If this week, if it starts basing, finally breaks above this channel here on May 18th and you can start this mix leg up. So that's the whole point, right? Big run, got tired, came in, right? Now reclaimed and now it's ready to go higher again. Look at Shopify, right? Shopify had a really nice quarter. Again, another example of a big, big run, right? Inverted hammer. Remember we just saw an inverted hammer? It's a sell signal, right? So what happened? The stock started coming down, two, three, four, maybe even a week now, okay? The point is the inverted hammer is going to give you a really good sense of what's about to happen next despite of what you think is going to happen next. And that's a very, very important point to kind of put the pieces to the puzzle. And now the key is can Shopify get back above and reclaim the 10-day moving average this week? I won't watch it. There is definitely some short-term call buyers came in from the 62s, the 63s, the 65s, the 66s. Who knows? Something's up, maybe nothing. But the point is I definitely want to watch the top of the range this week. If it starts reclaiming, it can start waking up. Apple, right? Apple broke out this week. Obviously, any dips we definitely want to keep an eye on. Meta broke out this week. Again, look for any dips we want to look out for. Look at a name, for example, like Tesla, right? Obviously, Tesla's my favorite stock. This week it did what it had to do. Took out two big levels here. We traded both those levels this week. This 170 went into the 174s. And then Friday got above this channel here. Most important, reclaim the 50-day moving average. And this is the highest close in this whole formation. The key is if Tesla can just get above this whole channel here for this week, right? There's a whole gap here to around the 190 area. And speaking of option flow, they were coming in for the 190, excuse me, they were coming in for the 200s, the 205s. They even saw some 215s for the next couple of weeks out of expiration. So if the market continues, or they're just a rotation from stocks that are coming off the top to coming off the bottom, a name like Tesla, if it confirms Friday's channel, it can really start stretching, especially the option flow, institutional money flow, continues to move. Other than that, it's a very stock-specific market. A lot of names are breaking out. The name we talked about a couple of days ago. ACVA, I started buying this thing a couple of days ago. Nice looking chart. It's not sexy. There's nothing mass appeal about it. But these charts are just working. It's just big moves, consolidates, reclaims, goes again. And these names have been working. Obviously, you have to start looking at charts that are coming off the bottom, so they're coming off the top. That's a safety issue. Kind of what we talk about all the top, not jumping off the 10th floor, if the first floor, in case you're wrong, you got a skinny instead of a severed head. So that definitely applies to this type of market. So if you're looking at the Qs, again, a 335, definitely keep an eye on this week for potential reversal back down. Names like NVIDIA, Google. I'm sure there's so many other names that have big, big runs. But I'm just trying to concentrate on one or two. You don't need 10 if you have one or two that could provide the same amount of value. If you look at all the other indexes, spies broke out this week again. You have the diamonds represented down general industrial average. It's playing a little bit of catch-up again. It's 30 stocks versus 100 in the NASDAQ and 500 in the S&P. The diamonds need to get above this 337 level, right? 337 level to really wake up. The IWM, again, has definitely been the red-headed stepchild in this whole rally. It is basically not participating because it's still stuck in this whole massive supply zone. For me to get interested on another broad-cap market rally, they're going to have to reclaim at least 181 in the close if you're trading the IWM to wake up. Look, I think there's definitely some good two-sided opportunity this week. I'm definitely watching for any type of clues for reversal oil, both in the NASDAQ, in the video, Amazon. You can spread it out through anything else if you want anything that had a high-flying appeal this week. The key is always, guys, always be prepared on both sides of the market. We have a thesis. We have a bias going into the day based on research, but if that bias quickly changes based on price action, you can't be a stubborn mule trying to recreate a wheel that doesn't want to be recreated. It's very, very important to understand that our opinions are cool, but price action is more important. Guys, have a blessed, blessed weekend. Stay healthy. Have a smile on your face. You only get one shot at this live. Might as well make the most of it. God bless, everybody. I'll see you all on Monday. Take care.


Hello and welcome to the session. In this session we will discuss a question which says that draw a scattered plot for the following table which shows blood pressure with respect to weight and explain whether there exists positive, negative or no relationship between the variables also find the strength of the relationship. Now here in this table blood pressure is given in millimeters of mercury and weight is given in kilograms. Now let us start with the solution of the drawn question. Now here we are given blood pressure and weight and we know that blood pressure depends on the weight of the person. So on vertical axis we will take blood pressure and on horizontal axis we will take weight. Blood pressure is dependent variable and weight is the independent variable. Now in the table you can see that blood pressure varies from 77 to 96 and weight varies from 60 to 110 on horizontal axis on vertical axis up to 110 on horizontal axis and 70, 75, 200 on vertical axis which are given to us in the table. Now as we have taken weight along horizontal axis and blood pressure along vertical axis so different value of weight and similarly blood pressure that is these given values for blood pressure represent different values. Now we have to plot the audit pair x, y on the graph. Now here first of 81 plot this audit pair on the graph. Now this is the point 60 on horizontal axis. Now from this point we will move to reach at the point where the y coordinate is 81, 80 or near 80. So this is the point which represents the audit pair 51. Now the next audit pair that we will plot on the graph. Now 61 will lie between 60 and 70 and just next to 70 point on vertical axis is 77 that lies in between 75 which represents the audit pair and we will plot all the other audit pairs on the graph. So we have plotted on the graph and we are getting this scattered plot for the given data. Now let us see the pattern of this scattered diagram. Now here we can see that most of the points are moving in upward direction so there exists a positive relationship between the two variables where we see that as weight increases the blood pressure also increases also the points are not close to each other. We can say that the points are moving in upward direction but they are far from each other. The strength of relationship is weak therefore there exists weak relationship between blood pressure increase in weight the blood pressure also increases. Now strength of the relationship can also be known with the help of a line. Now if we draw a line informally such that the either side of line has almost equal number of points and paying attention to the closeness of points we get this diagram. Here we see that the points are not very close to the line rather they are away from the line so the relationship is weak. Now here you can see that this line is moving upwards so there is a positive relationship between the two variables that there is a positive but weak relationship between the two variables. So this is the solution of the given question and that's all for this session hope you all have enjoyed the session.