[00:00:00] Speaker 01: 18, 1812, Allaire, Incorporated, against Rembrandt Diagnostics. [00:00:06] Speaker 01: Mr. Wilcox. [00:00:14] Speaker 00: Thank you, Judge Newman, and may it please the Court. [00:00:16] Speaker 00: Jason Wilcox on behalf of Allaire. [00:00:18] Speaker 00: The Board's decision in this appeal rests on two principal legal heirs. [00:00:23] Speaker 00: First, the Board adopted an erroneous construction of the wear-in clause that appears in Claim 1 of the 019 Patent [00:00:29] Speaker 00: And second, the board applied a bodily incorporation test to decide obviousness. [00:00:34] Speaker 00: Repeating a mistake, this court frequently warns courts and litigants to avoid. [00:00:38] Speaker 00: The board's claim construction reflects an unreasonably narrow reading of the claims by requiring a structure that is capable of allowing liquid to enter the container when the flow control channel is disposed therein. [00:00:50] Speaker 00: That's at Appendix 17. [00:00:51] Speaker 00: This timing-based restriction cannot be correct, is inconsistent with the language of the claims, [00:00:57] Speaker 00: which does not require a device capable of supporting any particular order of operations, it finds no support in the description of the invention in either the specification or the prosecution history, and it has nothing to do with the one and only advantage of the claim device the inventor has disclosed at column seven, lines 54 to 58, which was eliminating flooding without the need for a wicking material. [00:01:23] Speaker 00: Instead, the wherein clause describes how a sample fluid reaches the test strip within the flow control channel, not when the fluid reaches the container. [00:01:33] Speaker 03: And that construction, not the much near... What part of the claim language do you say that requires that the fluid be added after the control flow channel is added to the container? [00:01:44] Speaker 00: Well, so we don't think that that's required by the claim at all Judge Raina. [00:01:48] Speaker 00: The board thought it was required by the when added to the container clause that appears in the claim. [00:01:55] Speaker 00: But we think that that clause more correctly is read as just clarifying that number one, you don't actually have to have the sample fluid to have the claim device. [00:02:05] Speaker 00: And number two, that this isn't claiming [00:02:09] Speaker 00: the method of performing the actual test using the device, it's just claiming the device itself. [00:02:16] Speaker 00: If you didn't have the when clause, [00:02:19] Speaker 00: you would then potentially have an indefiniteness problem with this claim because it would read as if it was claiming both the device and the method. [00:02:26] Speaker 00: By adding the when clause, the inventors made clear that they were only claiming the device, but they weren't imposing any particular order of operations on how the fluid is added to the device and whether the fluid is added before or after the flow control channel or whether that's even a capability of the device. [00:02:44] Speaker 00: And I think you can tell that not only from the claim language, but also if you look at the specification at places like column five, lines 57 to 64, where it describes an actual embodiment of the invention, which is described as still preventing flooding even after the flow control channel is added to a sample container that contains fluid. [00:03:08] Speaker 00: So in that embodiment, the fluid is there before you add the flow control channel. [00:03:13] Speaker 00: And there's no indication that there's any requirement for that embodiment to also allow you to add fluid after the fact. [00:03:21] Speaker 00: And in fact, if you look at the specification and the prosecution history, not once did the inventor say anywhere that that's a central aspect of the invention or a required aspect of the invention. [00:03:32] Speaker 04: Were these claims amended during prosecution? [00:03:35] Speaker 00: These claims were amended during prosecution. [00:03:37] Speaker 00: In this respect? [00:03:38] Speaker 00: The when clause, although the structure of the claim changed a little bit, the when clause has been there since the beginning. [00:03:46] Speaker 00: So it has always been there, although the wording was slightly different, Judge Dyke. [00:03:51] Speaker 00: What was the wording before? [00:03:53] Speaker 00: I would need to look at the prosecution history, and I can have that for you on rebuttal, Judge Dyke. [00:03:57] Speaker 00: Yeah, I'll have that for you on rebuttal. [00:04:03] Speaker 00: Excuse me. [00:04:05] Speaker 00: But I think if you look at this when clause, and regardless of whether it was amended during prosecution or not, the phrase in the context of the claims and the context of the patent just can't be describing capability. [00:04:15] Speaker 00: I don't think that's consistent. [00:04:16] Speaker 04: Well, the significance of the amendment during prosecution is if [00:04:20] Speaker 04: The language was basically the same all along, and the specification has these embodiments where the fluid is there to begin with, then you would think the language wasn't designed to exclude that. [00:04:33] Speaker 00: I agree, Judge Dyke, and I will have the exact language for you on rebuttal, but the language was not changed in any significant respect. [00:04:40] Speaker 00: It's always been when added to the container. [00:04:42] Speaker 00: What was changed was the language surrounding it to make clear that it's direct application, that you don't need any wicking material, and that was to get around the tidings reference. [00:04:53] Speaker 00: And you can see the applicants making that argument at places like page 682 and 685 of the appendix. [00:05:05] Speaker 00: And that's not the only place also, Judge Dyke, where the claims actually talk about this ability to add, to have the fluid in there first. [00:05:13] Speaker 00: If you look at column 6, lines 22 to 27, it talks about immersing the flow control channel into the sample fluid. [00:05:21] Speaker 00: And it has the same exact description of column 1, lines 48 to 55. [00:05:24] Speaker 00: And if you're immersing something into a fluid, that means you're putting it into the fluid. [00:05:29] Speaker 00: It's not that the flow control channel is there first, and then you add it later. [00:05:33] Speaker 00: And the prosecution history also talks about, when it's characterizing the invention, never talks about the importance of when the fluid gets added. [00:05:42] Speaker 00: What the inventors consistently described as their invention was this notion of equalizing pressure, and that this equalized pressure would control the flooding. [00:05:53] Speaker 00: And that has nothing to do with when the fluid is added. [00:05:56] Speaker 00: And you can see that at Appendix 682. [00:05:58] Speaker 00: You can see that at Appendix 685. [00:06:00] Speaker 00: And it's repeated throughout the prosecution history. [00:06:02] Speaker 00: And unlike this consistent focus on directly adding the fluid and having this equalized pressure, once again, nowhere in the specification or the prosecution history did the inventors talk once about the importance of the timing of when the fluid is added and whether it's added before or whether it's added after. [00:06:19] Speaker 00: And that's because it wasn't important to their invention. [00:06:22] Speaker 00: And that shows that the board's construction is unreasonably narrow and cannot be correct. [00:06:28] Speaker 00: as does the specification of column 7, lines 54 to 58, which talks about the advantage that all of the embodiments have. [00:06:38] Speaker 00: And what it describes as the one advantage of all of the embodiments is, quote, providing for direct application of sample fluid to the assay test strip as opposed to having the fluid migrate through an intermediate structure, such as wicking material. [00:06:54] Speaker 00: that once again has nothing to do with the timing of when the fluid is added. [00:06:59] Speaker 00: And so I think that when you're trying to decide, as this court said in Henry Smith and power integrations, what is the broadest construction that corresponds with how the inventor described his invention in the specification, it's not a construction that imposes any limitation on when the fluid can be added or whether there's a capability to add fluid after the fact. [00:07:20] Speaker 00: The claims are simply agnostic about whether fluid can be added to the container after the flow control channel is put in place. [00:07:28] Speaker 00: If there's no more questions about claim construction, however, I do want to point out that my client also has a second path to victory here. [00:07:34] Speaker 00: which is that the board also applied an unreasonable obviousness analysis even under its own construction. [00:07:42] Speaker 00: What the board did is it looked at a figure that Rembrandt prepared that showed what it would look like if you just simply took the holder that is in McKay and bodily incorporated it into the cup that is in Sikowsky and said well if you put- This is an issue that hasn't been addressed yet by the board. [00:07:59] Speaker 00: No, the board did address this issue in Appendix 24. [00:08:02] Speaker 00: This is the board first adopted its construction and then said under our construction we think that the combination of McKay and Sapkowski does not render this obvious because if you just physically take McKay's holder and put it inside Sapkowski without making any modifications, you can see in this figure it won't work. [00:08:23] Speaker 00: Well, that bodily incorporation type of analysis, which is all that the board did, is what this court has consistently rejected in cases like Clasco, and MCM, and Ally Directing, and Elbrus. [00:08:35] Speaker 00: What you look at is you look at the teachings of the prior art. [00:08:37] Speaker 00: You don't look at whether you can bodily incorporate the two references together. [00:08:42] Speaker 00: It's not about embodiments. [00:08:43] Speaker 00: It's about teachings. [00:08:46] Speaker 00: you know, as this court said in Classco, you don't have to just have a puzzle element A that fits perfectly with puzzle element B. A person of ordinary skill in the art is a person of ordinary skill and creativity. [00:08:57] Speaker 00: Now what the board didn't consider, Judge Dyke, is whether you actually apply that correct legal analysis, whether these claims would be invalid. [00:09:05] Speaker 00: So even if you disagree with our claim construction, [00:09:08] Speaker 00: We think that a remand is necessary for the board to address the obviousness analysis under the proper legal framework rather than applying this bodily incorporation. [00:09:19] Speaker 03: Okay. [00:09:19] Speaker 03: Counselor, doesn't Chepowski expressly teach a container that is closed off when the inner closure insert is in place? [00:09:27] Speaker 00: It does teach one that is closed off. [00:09:29] Speaker 00: But the question is, would a person of ordinary skill in the art be motivated to modify that? [00:09:34] Speaker 00: And would they be capable of modifying it? [00:09:37] Speaker 00: And we had an expert who had appendix 858 to 859, and again at 1384 to 1389, walk through why he thought that he would be able to make this combination work. [00:09:47] Speaker 00: And the board never addressed why that combination wouldn't work. [00:09:50] Speaker 00: Now Rembrandt has some answers for why it thinks that combination wouldn't work. [00:09:55] Speaker 00: We disagree with those reasons. [00:09:57] Speaker 00: including because Rembrandt itself, at page 28 of its brief, acknowledges that you'd want to make this modification, because there may be advantages to adding urine after the fact. [00:10:07] Speaker 00: And a person of borderline skill in the ARP would recognize that. [00:10:09] Speaker 00: But the key point is the board didn't address that. [00:10:13] Speaker 00: And that alone is a reason to send it back, because under the Administrative Procedure Act, Rembrandt's arguments can't substitute for a reasoned decision by the board on this issue. [00:10:23] Speaker 01: And so I gather that both sides share the view that this should go back in view of SAS in any case? [00:10:33] Speaker 00: Yes. [00:10:34] Speaker 00: So for the non-instituted claims and grounds, which McKay and Sivakowski are an instituted grounds, but for the non-instituted claims and grounds, both sides agree. [00:10:42] Speaker 01: Do you believe what's been adjudicated as is? [00:10:44] Speaker 01: Do you think that that would be the appropriate posture of such a remand just for the non-adjudicated aspects? [00:10:54] Speaker 00: Yes, I think that what the court should do is it should resolve the issues that are currently before the court, just as it did in South Tech, and then remand for the board to address the non-instituted claims and grounds. [00:11:06] Speaker 00: And that will, I think, be more efficient, Judge Newman, including because some of the board's reasoning for some of the other grounds in its institution decision, such as for this combination of a German patent with Sipkowski, mirror the exact reasoning it gave here. [00:11:21] Speaker 00: You can see that at appendix 250 to 252. [00:11:24] Speaker 00: And you can even compare the figures that are on page 21 of our reply brief. [00:11:28] Speaker 00: And so to just send it back now without adjudicating those issues first, we think would be an inefficient use of the parties in the court's time. [00:11:38] Speaker 00: The court is already prepared for oral argument. [00:11:40] Speaker 00: It's already dug into the issues. [00:11:42] Speaker 00: And we'd just be back here in two years to have the same arguments about McKay and Sipkowski and probably the exact same arguments about why those also apply to the German Patent and Sipkowski [00:11:53] Speaker 00: And so we think it would be more efficient to resolve those, get those off the table, and then the parties can have whatever disputes they need to have about the uninstituted grounds, as well as claims 6 and 10, for which the board didn't institute on any of the grounds. [00:12:07] Speaker 00: And if there are no further questions from the court, I'll reserve the balance of my time. [00:12:11] Speaker 01: Thank you. [00:12:22] Speaker 01: Mr. Jennings. [00:12:24] Speaker 02: Thank you, Judge. [00:12:25] Speaker 02: Good morning, Your Honors. [00:12:27] Speaker 02: It may please the Court. [00:12:30] Speaker 04: Do you agree that there are embodiments in the specification where the fluid is already in the container at the time that the test strip is or test mechanism is added? [00:12:46] Speaker 02: There's statements that suggest that. [00:12:48] Speaker 02: They refer to immersion. [00:12:50] Speaker 02: I don't know if we can characterize them as embodiments, but they do suggest that the test strips and flow control channel are immersed in the fluid. [00:13:00] Speaker 04: OK, so if that's the case, then don't you have a problem in terms of claim construction? [00:13:08] Speaker 04: The normal rule is that if the specification suggests an embodiment or an approach, that we would normally assume that that's within the claims. [00:13:19] Speaker 02: But it's the capability of the device to have sample fluid added to the device when the flow control channel with the test strips is disposed within the container. [00:13:33] Speaker 02: And having that capability [00:13:35] Speaker 02: gives a primary benefit that's recited in the abstract and the title of the invention, that the device would be capable of operation in a single step. [00:13:45] Speaker 02: So even if there are embodiments as the fluid is in the container before the flow control channel or test strip is placed within the container, that doesn't suggest that those embodiments are in fact closed off [00:14:03] Speaker 02: These machinations that we're going through to somehow interpret the claims to cover a device, that would be incapable of having fluid when the test strips and flow control channel were in fact disposed within the container. [00:14:18] Speaker 02: Well, I understand what you're arguing about. [00:14:20] Speaker 04: Was there any change in the claim language in this respect? [00:14:28] Speaker 02: In the prosecution? [00:14:30] Speaker 02: not with respect to the when added to the fluid container. [00:14:34] Speaker 04: So then I guess you got a problem if we were to disagree with you about the disclosures in the specification. [00:14:41] Speaker 02: Well, if we look to, for example, one of the disclosures that council referred to is in column six, lines, this is appendix 34, column six, starting at line 22. [00:14:59] Speaker 02: It says the liquid pervious side of the flow control channel is necessary to allow the pressure within and without the flow control channel to maintain substantial equilibrium, notwithstanding immersion into the sample fluid and entry of fluid into the assay test tube disposed within the flow control channel. [00:15:19] Speaker 02: So that could be referring to the state of it being immersed or as [00:15:25] Speaker 02: Appellants argue a step of immersion. [00:15:28] Speaker 02: But the specification goes on, Your Honor. [00:15:35] Speaker 02: And if we look further down in column six, starting at line 40, the specification says, in use, the test subject introduces an assay sample fluid, typically urine, into a fluid sample container, such as cup two, through mouth three. [00:15:55] Speaker 02: closed N35, a flow control channel 34, blocks sample fluid from entering the flow control channel as it is introduced through mouth 3. [00:16:06] Speaker 02: And so this capability, after all, what's claimed here is a device. [00:16:11] Speaker 02: And it's not the fluid, but the device is capable [00:16:15] Speaker 02: of having sample fluid added with the flow control channel, which contains the test strip, disposed within the container. [00:16:25] Speaker 02: So it's not just about the timing [00:16:28] Speaker 02: of when the sample, the board recognized that its construction could allow the sample to be added before or after the flow control channel is disposed within the container. [00:16:39] Speaker 03: So you were reading from the specification, but isn't capability actually within the claim itself? [00:16:47] Speaker 02: Yes, Judge Raina. [00:16:48] Speaker 02: In fact, if we look at the claim language, the board's rested its decision on the plain meaning of the claim language. [00:16:56] Speaker 02: And this wherein clause, so the claim is fairly straightforward. [00:17:00] Speaker 02: The claims at issue here all depend from claim one. [00:17:02] Speaker 02: Claim one includes three elements, a flow control channel, a test strip within the flow control channel, and a sample fluid container. [00:17:10] Speaker 02: And then this wherein clause describes the structural relationship between those elements and how they work. [00:17:17] Speaker 02: And if we just go through that straightforward language of the wherein clause, wherein the flow control channel is disposed inside the sample fluid container, [00:17:26] Speaker 02: with the liquid pervious site oriented toward, and toward was a typo, was added, the base of the sample fluid container so that the assay sample fluid, when added to the container, is delivered to the sample loading zone of the test strip. [00:17:44] Speaker 02: And it goes on. [00:17:45] Speaker 02: So that's describing, and it's just plain meaning. [00:17:49] Speaker 04: But it doesn't seem to me that the language is really susceptible of a construction that it's able to do one or the other. [00:17:57] Speaker 04: It seems to contemplate a particular mechanism which is going to operate in a single way. [00:18:07] Speaker 04: Well, after all, the figures. [00:18:10] Speaker 04: There's nothing in this. [00:18:12] Speaker 04: There's nothing in the claim language that suggests that it's capable of operating no matter when the fluid is added. [00:18:22] Speaker 02: I submit that the claim language suggests that it's operable when the test strip, which is within the flow control channel, is disposed inside the sample fluid container, that the sample fluid can be added. [00:18:38] Speaker 02: And if you could not add the sample fluid with it so disposed, you're going to lose that benefit of the invention that it could operate as a single step, which is both the abstract and the title of the patent. [00:18:52] Speaker 02: And also, the device shown in the figures all show a device capable of having sample fluid added with the flow control channel and test strips disposed within the container. [00:19:06] Speaker 03: There could be fluid already in the container, correct? [00:19:14] Speaker 03: And then the test strip is included and then more fluid is added after that? [00:19:18] Speaker 02: The device remains capable, per the claim language, to add fluid with the flow control channel and test strip disposed within the container. [00:19:27] Speaker 02: During prosecution, the applicants consistently stated that the device of the present invention is shown in the figures. [00:19:36] Speaker 02: And those figures plainly show a device that's capable of adding fluid with the flow control channel and test strip disposed within. [00:19:46] Speaker 02: And even in the specification, the statement regarding immersion that appellants point to, it follows, as I read in column six, talks about in use, the sample is being. [00:19:58] Speaker 04: Yeah, but what you're arguing is that a single device [00:20:04] Speaker 04: It simply has to be capable of doing both, whereas another construction is that the claim is broad enough to cover either embodiment and that of course under our doctrine if one [00:20:30] Speaker 04: of these embodiments as obvious, even though it claims another one, the whole claim is obvious. [00:20:39] Speaker 02: When they point to these statements that suggest the flow control channel is immersed into existing fluid, there's nothing in the specification that suggests that the device would then be closed off and incapable. [00:20:52] Speaker 04: But do you understand what I'm saying? [00:20:53] Speaker 04: I mean, what you're arguing is that a single device has to be capable of doing both, which seems to me not a natural reading of this, as opposed to a claim that's broad enough to cover either embodiment, whether the fluid is there or when the fluid's added later. [00:21:12] Speaker 02: The whether it could be added before or not, per the claim language, it simply has to be capable. [00:21:21] Speaker 02: The claim language talks about the flow control. [00:21:22] Speaker 04: Why does it have to be capable of doing both? [00:21:25] Speaker 02: Well, the claim language refers to the flow control channel being disposed within the container. [00:21:30] Speaker 02: And so we're talking about what's the capability of this device when the flow control channel is so disposed and the board's [00:21:40] Speaker 02: reading of the plain language of that claim was that the device was capable of having sample fluid added to it. [00:21:47] Speaker 02: And that allows the device to operate in a single step, as is described as an advantage of the invention in both the title and the abstract. [00:21:58] Speaker 02: Now, the board below in addressing an issue that's not here on appeal said, [00:22:04] Speaker 02: the advantage of single step operation was not caused to read the term device in the preamble as requiring the ability to operate in a single step. [00:22:16] Speaker 02: But I submit that the wherein clause here, which describes the structural relationship of the three elements recited in claim one, [00:22:25] Speaker 02: describes a structure that those three elements work together to provide the benefit that a sample fluid can be added with the flow control channel disposed within the container. [00:22:36] Speaker 02: And that capability provides that advantage. [00:22:41] Speaker 03: Could you address the SAS issue that's before us? [00:22:45] Speaker 02: The parties agree, Judge Raina, that the case needs to be remanded to address the uninstituted claims and grounds that the board. [00:22:54] Speaker 03: Should we decide the merits of this appeal first before? [00:22:58] Speaker 02: Initially, we thought it should just go back and we should avoid piecemeal litigation. [00:23:01] Speaker 02: But now, since such time has passed, we are here. [00:23:05] Speaker 02: We think the most efficient course is to address the merits of this appeal and then send it back for the unaddressed claims and grounds that the board found [00:23:15] Speaker 02: lacking at the institution stage. [00:23:20] Speaker 02: Now, I'd like to address the argument about the alleged error by the board in bodily incorporating the references. [00:23:32] Speaker 02: The board specifically addressed the teaching of Sapkowski. [00:23:43] Speaker 02: The board recognizes that the teaching of Sapkowski was a inner closure insert whose function was to close off the container. [00:23:55] Speaker 02: So the board was recognizing the teaching. [00:23:58] Speaker 02: It was applying the teaching of Sapkowski and said Sapkowski teaches closing off, which is inconsistent with a device that's capable of having fluid sample added to the device [00:24:10] Speaker 02: when the flow control channel is disposed within the container. [00:24:16] Speaker 02: And in fact, this teaching of closing off the device was what Petitioner argued as the reason to combine [00:24:29] Speaker 02: They argued that the reason one would combine Sapkowski with McKay was this advantage that Sapkowski taught of having a closure insert which could close off the device and avoid a user being contaminated with the urine sample. [00:24:50] Speaker 02: And in fact, it's the very argument that they made for their obviousness case. [00:24:56] Speaker 02: They argued, this is at Appendix 72, a posita would naturally considering using McKay's sealed test-trip case with Sapkowski's cup and insert by inserting such a test-trip case into the slot in the top of Sapkowski's insert. [00:25:15] Speaker 02: So that's the case they presented to the board. [00:25:18] Speaker 02: And the board also addressed the teachings of Sapkowski and said Sapkowski closes off and it's inconsistent with what the claimed invention is. [00:25:28] Speaker 02: And a final point I'd like to make is the argument about one of skill in the art modifying Sapkowski's insert to permit fluid to be added to the assembled device. [00:25:44] Speaker 02: This was not made below. [00:25:47] Speaker 02: It was addressed in oral argument below, the concept of someone of skill in the art recognizing they potentially could pipette fluid through the insert of Sapkowski's insert. [00:26:01] Speaker 02: And the board recognized this was never made below, and that's in the board's decision at appendix 24. [00:26:09] Speaker 02: Council is going even a step further. [00:26:11] Speaker 02: There's no evidence cited for this alleged obviousness to somehow modify Sipkowski to permit fluid to be added to the sample fluid container. [00:26:21] Speaker 02: So the board addressed the teachings of Sipkowski in its obvious analysis. [00:26:26] Speaker 02: This new argument was not made below. [00:26:28] Speaker 02: It was suggested at oral argument. [00:26:32] Speaker 02: And the board properly found it had not been made and found it was waived. [00:26:38] Speaker 01: Well, if there is a remand for the other issues, the argument could then be made, could it not? [00:26:46] Speaker 02: If it were addressed in other grounds that were not instituted initially by the board. [00:26:54] Speaker 02: But on this record... Hard to tell. [00:26:56] Speaker 01: If there is a dispositive argument which comes up below an inoral argument, [00:27:02] Speaker 01: and nonetheless to allow a decision to stand with the estoppels and meanwhile to remand on other grounds. [00:27:10] Speaker 01: That doesn't fulfill the purposes of SAS for which the Supreme Court decided every issue and argument should be considered. [00:27:23] Speaker 02: Correct. [00:27:25] Speaker 02: And the board would consider every issue and argument raised by the petition below. [00:27:33] Speaker 01: Okay. [00:27:34] Speaker 01: Any more questions? [00:27:35] Speaker 01: Any further questions, Mr. Jennings? [00:27:36] Speaker 01: Thank you, Mr. Jennings. [00:27:37] Speaker 01: Thank you, Judge. [00:27:45] Speaker 01: Mr. Wheelcocks. [00:27:47] Speaker 00: Thank you, Judge Newman. [00:27:48] Speaker 00: Judge Dyke, the site for you on the claims is Appendix 687. [00:27:53] Speaker 00: It's one of the office action responses, and it shows how the claims were amended during prosecution. [00:28:00] Speaker 00: And it shows in particular that the when added to the container language has been there since the outset. [00:28:06] Speaker 00: And I think that [00:28:10] Speaker 00: I think it's telling that counsel had no answer to column 5, lines 57 to 64 when you asked him about it, Judge Dyke, and how he could square the board's construction with that embodiment. [00:28:20] Speaker 00: He kept on wanting to talk about column 6 and trying to explain that one away, but couldn't explain away at column 5, lines 57 to 64, and how that would adequately be captured by the board's construction. [00:28:31] Speaker 00: I think that shows the critical flaw in what the board did here, and that it is hard to reconcile this construction with that disclosure. [00:28:39] Speaker 00: He said several times that reading the claims the way we want to read them and the way we think the claims read, which is the way in which you can do it either way, as you said Judge Dyke, would be inconsistent with this notion of having a single-step device. [00:28:55] Speaker 00: The claims don't claim a single-step device. [00:28:58] Speaker 00: The board walked through why they don't claim a single-step device at Appendix 13, including the fact that they chose not to put that language in the claims. [00:29:06] Speaker 00: and also because it would again be inconsistent with column 5, lines 57 to 64, because that specifically describes having a container that already has urine in it and then adding the flow control channel. [00:29:19] Speaker 00: That's not a single step, that's two steps. [00:29:24] Speaker 00: There was a lot of discussion about the teachings of [00:29:26] Speaker 00: Sipkowski and what we argued below, I completely agree with you, Judge Newman, that if there's any questions about that, the proper course here is to correct the board's misunderstanding that it could just apply a bodily incorporation theory and then let the board address whether we sufficiently developed those arguments at appendix 1384 to 1389 and also at appendix 858 to 859. [00:29:52] Speaker 00: And I think that's most consistent with the teachings of SAS and also most consistent with the role of this court when you're in an APA posture, where it's really the board's job to make any of those factual findings about whether we've met our burden. [00:30:04] Speaker 00: The problem here is the board committed a legal error that made it stop short of ever even addressing that question. [00:30:11] Speaker 00: And that alone requires a remand here, although we think that the remand most principally is required because of the board's erroneous claim construction. [00:30:20] Speaker 00: and reading in this timing-based restriction into the claims. [00:30:24] Speaker 00: And finally, on the SAS point, it sounds like both parties now agree that the best path forward for the court is to resolve those issues. [00:30:32] Speaker 00: I think that would be the most efficient for the court. [00:30:35] Speaker 00: And I also think that would avoid any of the potential issues, like what happened in the bio delivery case, where this court remanded for the board to decide. [00:30:44] Speaker 00: And then the board, instead of deciding the issues that were in front of it, [00:30:46] Speaker 00: de-instituted, and there was never a chance to have appellate review of the board's decision. [00:30:51] Speaker 00: If there are no further questions, thank you, Your Honors. [00:30:54] Speaker 01: Thank you. [00:30:57] Speaker 01: Thank you both. [00:30:58] Speaker 01: The case is taken under submission.