On the other hand, the expert stated in his opinion with respect to the plaintiffs (in paragraph 1.2.3 of his third opinion) that at least since the beginning of March 2020 or earlier, they had developed the X antenna and had tried several sizes of spacers in the micro-antenna on the chip.
- Thus, the defendants claim that their development came into existence immediately. The expert testified that the defendants' counsel told him that Prof. Seroussi had invented the antenna structure in the sensor, in the structure of the X, for the first time, in a handwritten scribble while sitting on the balcony. As evidence of this, the defendants submitted the P/1, in which you can see the photograph of the doodle that appeared on Prof. Seroussi's mobile phone, bearing the date March 28, 2020, at 12:32 noon. The expert further noted in his fourth opinion that the defendants' ISA told him that it was a matter of "An invention that is the flash of a moment(See: page 35 of the fourth opinion, in paragraph 2 of Appendix B).
However, the expert's unequivocal position is that it is not possible to reach this conclusion in one fell swoop, as claimed (see: p. 35 of the opinion; 437, S. 11-13; 547, S. 22-14). Dr. Bressler testified that the X structure of part of the antenna (Fig. 1.2.3. his supplementary opinion of November 21, 2022), cannot be the product of a moment's doodle. It requires time and effort (437, s. 13-11).
We should also mention that immediately the next day, within about 24 hours of this doodle, i.e., on March 29, 2020, the defendants filed their patent application in which the sensor with this antenna appears in structure X. The expert determined that it was unlikely that the basis for the patent would be formulated on such timetables, and this without open research (616, Q. 20-29). The defendants' argument, the expert noted, is equivalent to winning the lottery (see: 437, Q. 19-18).
- It was found that the defendants' version is not plausible. This is a development that requires investment. A situation in which it is created with a flash of thought, when immediately afterwards a patent application is filed, is unreasonable in the circumstances of the case. And as noted, the defendants did not present a real infrastructure that could explain the rapid schedules in which they progressed with their opening.
Another circumstantial consideration that should be added is that Prof. Seroussi was credited with not having scientific publications in the field of THZ, prior to March 29, 2020, the date on which the defendants' American patent application was filed (see: paragraph 1.1.2 of the fourth opinion; 581, paras. 19-582, para. 7). This fact only strengthens the need for the defendants to invest in research and open work in order to reach the results they have reached.
- At the same time, the expert's position is that the patent application filed by the defendants contains the plaintiffs' trade secret. This is in view of the fundamental similarity between the two developments. In his fourth opinion, the expert clarified that the X structure served as a "layer" for the plaintiffs that helped them reach their final chip structure (see: paragraph 1.2.5 of his fourth opinion). As the plaintiffs proved (see: paragraph 1.2.3 of the expert's last opinion, and in Appendix A to his opinion, in which diagrams of the chips were attached). X Various developed by the plaintiffs), they were engaged for a long time at first in developing the X-structure of the chip, and only later, following the experiments they carried out, did they discover that it was not so successful, and by way of trial and error, they eventually arrived at their current chip structure. As stated, the defendants did not present any independent open process, which explains the situation.
- This totality of circumstances shows that the defendants have not been able to contradict the presumption of use. On the contrary. Their stance, with its accompanying timetables, turned their explanations upside down For those who can't be accepted.
Date of the Respondents' Venture - After Exposure to the Plaintiffs' Venture
- Prof. Seroussi's work on his project also began after he was exposed to Mr. Ram's work.
- Prof. Seroussi admitted in his affidavit and in his interrogation as part of the interim relief, that his current project with the plaintiffs began on March 14, 2020 (115, Q. 10; See also paragraphs 19-20 of the affidavit). He also admitted in his affidavit (at paragraph 28) that on March 17, 2020, he received a username and password that allowed him access to the plaintiffs' system in which the information about the About Their invention.
In his testimony, he noted that his contacts with the Consolidation of Claims in relation to his opening began on March 18, 2020 (see: testimony of Prof. Seroussi in the framework of the interim relief - 115, paras. 29-32), and that the practical work with the Claims Framework began on April 3, 2020 (ibid., S. 12).
- Hence, according to the defendants, on March 18, 2020, only four days after the plaintiffs began providing services to the plaintiffs, and only one day after the defendants received access to the plaintiffs' trade secrets (on March 17, 2020), Prof. Seroussi began to develop a device for diagnosing the virus himself, according to his own admission SARS-COV-2 Based on exhalation and frequencies THZ.
It is important to note in this context that in his affidavit, Prof. Seroussi refrained from mentioning the exact date on which he himself began his independent venture. He pointed (in paragraph 16) to the university's president's "call for researchers" to enlist in the fight against the coronavirus pandemic. The call for proposals was circulated on March 10, 2020. Subsequently, he submitted his research proposal to the university to develop a rapid test to detect the virus using exhalation and spectroscopy using a dedicated chip. However, Prof. Seroussi did not attach his research proposal to his affidavit, so that we could know when he began developing his independent venture.