[00:00:51] Speaker 03:
Next case is Octocat versus Polaris Industries, 2018-1850.

[00:01:03] Speaker 03:
Council, would you pronounce your name for us, please?

[00:01:07] Speaker 03:
Sure.

[00:01:08] Speaker 03:
Neil McCloud.

[00:01:08] Speaker 03:
McCloud, good.

[00:01:09] Speaker 03:
When you're ready.

[00:01:20] Speaker 01:
Good morning, Your Honors.

[00:01:39] Speaker 01:
Neil McLeod representing Appellant Articad.

[00:01:42] Speaker 01:
May it please the Court.

[00:01:44] Speaker 01:
The Board's

[00:01:45] Speaker 01:
decision in the CIPR is erroneous and should be reversed for four fundamental reasons.

[00:01:51] Speaker 01:
First, the court found that the Rondo 917 patent is prior art to the Articat patent, the only Tweet patent, under a legally flawed analysis of this court's decision in dynamic drinkware.

[00:02:07] Speaker 03:
Second, the board used a claim construction that... You're finding that dynamic drinkwater said every claim?

[00:02:15] Speaker 01:
Yes, we are, Your Honor.

[00:02:17] Speaker 03:
Where is that in the opinion?

[00:02:21] Speaker 01:
It's all over section two of the dynamic drinkware opinion, which is the part of the opinion, the last two pages of the opinion, that deals specifically with this issue.

[00:02:32] Speaker 01:
It's recited as the claims, and it's talking about comparing the alleged prior art to the provisional.

[00:02:40] Speaker 01:
Four times it says the claims, twice in italics.

[00:02:44] Speaker 02:
What was the site that you gave Judge Laurie on the opinion?

[00:02:50] Speaker 01:
It's section two of the opinion.

[00:02:51] Speaker 01:
Section two.

[00:03:02] Speaker 01:
It's the last two pages of the opinion.

[00:03:06] Speaker 03:
But if we disagree with you, Rondeau is a pretty good reference.

[00:03:11] Speaker 01:
Rondo is a reference by Articat's competitor Bombardier.

[00:03:17] Speaker 03:
Well, competitor or not, it's pretty effective.

[00:03:20] Speaker 03:
It talks about a rearward seat and the rearward main portion, and then the rearward portion being elevated relative to the main portion.

[00:03:33] Speaker 03:
That's pretty much her invention.

[00:03:36] Speaker 01:
It's different in the seating arrangements.

[00:03:39] Speaker 01:
First of all, it's got the same seat.

[00:03:43] Speaker 01:
It doesn't have the claimed separate seats where you have a driver's seat.

[00:03:48] Speaker 03:
Well, one of your claims, claim one doesn't have a separate seat either, as I recall.

[00:03:53] Speaker 01:
It's got separate seating positions.

[00:03:55] Speaker 01:
Claim nine certainly does have the two.

[00:03:56] Speaker 03:
Claim nine does, yes.

[00:03:58] Speaker 01:
And Rondo, if you look at it, Rondo is closer to the prior art that was overcome

[00:04:05] Speaker 01:
in the patent office, the Davis reference.

[00:04:10] Speaker 01:
Rondo is not about what the Articat patent is, which is two separate seats.

[00:04:15] Speaker 01:
And one is substantially, the passenger seat, is substantially above the driver's seat.

[00:04:22] Speaker 01:
Rondo doesn't have that.

[00:04:24] Speaker 04:
Can I ask you this question?

[00:04:25] Speaker 04:
As I recall, you don't challenge the proposition that the Rondo provisional

[00:04:34] Speaker 04:
teaches all of the claim limitations, including those of the dependent claims here, and indeed the dependent claims of Rondo itself.

[00:04:48] Speaker 01:
Are you talking about comparison of the provisional of Rondo to the Arctic Cat claims?

[00:04:54] Speaker 04:
I tried to do both.

[00:04:56] Speaker 04:
Let's start with the comparison of the provisional to the Arctic Cat claims.

[00:05:03] Speaker 04:
dispute that, right?

[00:05:05] Speaker 01:
I believe we do, first of all.

[00:05:07] Speaker 04:
Except for this, you know, two seat business.

[00:05:09] Speaker 04:
I mean, that is putting aside the dispute about the two seats and any more than what's in Rondo itself.

[00:05:17] Speaker 01:
The two seat limitation and also the substantially above limitation.

[00:05:23] Speaker 04:
Okay, but that's the same as between Rondo and the provisional.

[00:05:29] Speaker 01:
That I'm not sure of exactly.

[00:05:31] Speaker 01:
What I do think is that

[00:05:33] Speaker 01:
They never got Rondo 917 to be prior art because they failed the dynamic.

[00:05:39] Speaker 04:
Here's what I guess I'm trying to get at a legal question, which I guess is becoming less and less significant because of the replacement of these provisions in the AIA.

[00:05:52] Speaker 04:
Your contention is that in order for Rondo to have a priority based on the filing date of the provisional, every single claim in Rondo, one through nine,

[00:06:02] Speaker 04:
need to be supported in the provisional.

[00:06:05] Speaker 01:
That is our position.

[00:06:06] Speaker 04:
And the board said, we're only going to look at claim one, the only independent claim, not two through nine, which are some dependent claims.

[00:06:14] Speaker 04:
And that one is supported, and that's enough.

[00:06:16] Speaker 04:
And you disagree with that.

[00:06:17] Speaker 04:
We disagree.

[00:06:18] Speaker 04:
So here's what I'm trying to figure out.

[00:06:21] Speaker 04:
Have you shown, even if the board was legally incorrect,

[00:06:28] Speaker 04:
that legal error was prejudicial.

[00:06:31] Speaker 04:
And it seems to me what you have to do, I think under the APA under 706, which says you have to take account of the rule of prejudicial error, which means you need to show it wasn't harmless.

[00:06:41] Speaker 04:
And it seems to me in order for you to show that if that was error, it was prejudicial, you need to show that the provisional might not reasonably might not support claims two through nine.

[00:06:53] Speaker 04:
And I don't see that you've shown that.

[00:06:57] Speaker 01:
Two through nine of Rondo.

[00:07:00] Speaker 04:
This whole debate is about whether one is enough or all one through nine in Rondo had to be supported by the provisional.

[00:07:07] Speaker 01:
I think we did.

[00:07:08] Speaker 01:
We showed, I think, claim one of Rondo is not supported by the provisional.

[00:07:17] Speaker 01:
It's not in our appellate brief, but we did challenge that finding by the board.

[00:07:27] Speaker 02:
How did you challenge it if it's not in your brief?

[00:07:31] Speaker 01:
In our brief, we're just challenging what I think is a straightforward, dynamic drinkware test.

[00:07:37] Speaker 01:
All claims have to be supported in the provisional.

[00:07:40] Speaker 01:
And it's a threshold test the way I read it.

[00:07:42] Speaker 01:
You can't even begin to consider the provisional.

[00:07:47] Speaker 02:
Do you have authority other than the drinkware case to support that?

[00:07:53] Speaker 01:
language in the Drinkware case?

[00:07:54] Speaker 02:
Is there another case?

[00:07:55] Speaker 02:
Do you have authority other than the Drinkware case?

[00:07:58] Speaker 01:
I've looked and I don't find any other cases that clarify, change, or in any way modify the Drinkware case.

[00:08:11] Speaker 01:
So again, I see it as a threshold test.

[00:08:13] Speaker 01:
You can't even begin to talk about provisional applications and what's disclosed in those until you meet this Drinkware test.

[00:08:21] Speaker 01:
The petitioner didn't do it.

[00:08:22] Speaker 01:
admittedly didn't do it.

[00:08:24] Speaker 01:
Claim one is the only one they analyzed.

[00:08:27] Speaker 01:
They read Drinkware.

[00:08:28] Speaker 01:
They read the term the claims.

[00:08:31] Speaker 01:
They even cited it in their petition.

[00:08:33] Speaker 01:
They strategically chose not to map all the claims of the throndo onto the provisional.

[00:08:40] Speaker 01:
And they shouldn't be rewarded for stealing.

[00:08:42] Speaker 04:
I'm sorry.

[00:08:42] Speaker 04:
How do we know that they strategically chose that?

[00:08:45] Speaker 04:
Just that that's what they did?

[00:08:47] Speaker 01:
Because I think they did it because, well, maybe I should retract the word strategically.

[00:08:51] Speaker 01:
They did it knowing that Dynamic Drinkware says the claims.

[00:08:56] Speaker 01:
And they didn't do it.

[00:08:57] Speaker 01:
And I don't think they should be rewarded for that.

[00:08:59] Speaker 01:
They failed the test.

[00:09:01] Speaker 01:
And Rondo 917 is not a priority in this case, based on Dynamic Drinkware.

[00:09:12] Speaker 02:
Suppose that Rondo had 100 claims.

[00:09:14] Speaker 02:
Would they be required to chart all those claims?

[00:09:20] Speaker 02:
It sounds like a ton of work.

[00:09:22] Speaker 02:
It would be.

[00:09:24] Speaker 02:
That's the point.

[00:09:25] Speaker 02:
I mean, it would be an incredible burden, wouldn't it?

[00:09:28] Speaker 01:
Few patents have 100 claims.

[00:09:30] Speaker 01:
Most have 20, 10, less than 20.

[00:09:35] Speaker 01:
The flip side of that, Your Honor, is if there were half a dozen independent claims, you could pick and choose strategically, oh, this is the broadest one.

[00:09:44] Speaker 01:
This is the easy one to support.

[00:09:46] Speaker 01:
And then do what I think they're doing and what other

[00:09:51] Speaker 01:
patent challengers might do is try to bootstrap the non-prior art back to the filing date of the provisional unfairly.

[00:10:03] Speaker 03:
But the real point is if the provisional discloses the invention and nothing shows the invention more than the broadest claim won.

[00:10:15] Speaker 01:
I'm not sure I'm following the question.

[00:10:16] Speaker 03:
And if that's satisfied, then

[00:10:20] Speaker 03:
Why isn't that an effective reference as of provisional filing date?

[00:10:27] Speaker 01:
That would only be part of the analysis.

[00:10:30] Speaker 01:
It's not what Drinkwater says, first of all.

[00:10:32] Speaker 03:
The Drinkwater test, I think, is, again, a threshold test that... But I'm talking about the real meaning of these provisions, that whether RONDO gets the benefit as a reference of its provisional date depends upon whether

[00:10:50] Speaker 03:
Rondo's provisional discloses the invention.

[00:10:53] Speaker 03:
And I'm saying claim one of Rondo, the broadest claim, is the invention.

[00:11:00] Speaker 01:
We don't know that claim.

[00:11:01] Speaker 01:
You're almost comparing claim one of Rondo to the claims of the arty cat, Pat.

[00:11:06] Speaker 03:
Well, I haven't mentioned arty cat.

[00:11:10] Speaker 01:
Right.

[00:11:11] Speaker 01:
But I think you're doing what I think you're asking me.

[00:11:14] Speaker 01:
The question is suggesting to me what I think Polaris is doing.

[00:11:19] Speaker 01:
bootstrap this entire Rondo 917 patent off, get an earlier filing date for it based on just an analysis of one claim, whereas Drinkware says all of them.

[00:11:31] Speaker 01:
Drinkware is, I think, in an attempt to vet the entire provisional application.

[00:11:36] Speaker 03:
Is the word all in the Drinkwater opinion?

[00:11:39] Speaker 03:
How does it say?

[00:11:40] Speaker 01:
It says the claims.

[00:11:42] Speaker 01:
The claims I take to mean.

[00:11:44] Speaker 01:
I think the only reasonable

[00:11:45] Speaker 01:
reading of it is all the claims.

[00:11:47] Speaker 04:
Do you know, was there a disputed issue in Drinkware and whatever the sub, was there an Amgen subsequent file one case or something about whether all versus one

[00:12:04] Speaker 01:
I don't think in Drake where the dispute was all versus one, it was none versus all.

[00:12:09] Speaker 04:
Right.

[00:12:09] Speaker 04:
So that means maybe the crucial distinction that you're making here wasn't really the focus of anybody's attention.

[00:12:17] Speaker 04:
And so it might not quite stand for that.

[00:12:21] Speaker 01:
The court, I think, was pretty clear in using the words, the claims, four times and twice italicized.

[00:12:29] Speaker 01:
I don't think that the court was

[00:12:31] Speaker 01:
glossing over any kind of distinction there.

[00:12:33] Speaker 01:
It's the claims.

[00:12:41] Speaker 01:
One of the other errors that the court made was in the claim construction.

[00:12:46] Speaker 01:
The court's claim construction that they used vitiates or essentially erases the two critical claim limitations.

[00:12:55] Speaker 01:
That is

[00:12:56] Speaker 01:
substantially above and significantly above.

[00:12:59] Speaker 01:
And that's in regard to the placement of the passenger seat versus the driver's seat.

[00:13:06] Speaker 01:
The court's construction was, excuse me, the board's construction was any positioning of the passenger seat with respect to the driver's seat is met, any position by the prior court.

[00:13:19] Speaker 01:
It's erroneous on its face, especially in light of the prosecution history.

[00:13:23] Speaker 04:
Can you clarify for us something?

[00:13:26] Speaker 04:
Didn't the board say in its institution decision, not just the final written decision, but also in the institution decision that this idea, I don't remember the exact words, any even minimal height difference would satisfy the claim?

[00:13:47] Speaker 01:
They did.

[00:13:48] Speaker 04:
And did you, in your patent donor response, say that is incorrect?

[00:13:55] Speaker 01:
I believe we did.

[00:13:56] Speaker 01:
They, the board said we are adopting Articats, Articats construct.

[00:14:02] Speaker 04:
In the institution decision.

[00:14:03] Speaker 01:
Right.

[00:14:04] Speaker 04:
And explain that what it thought it was adopting covered any.

[00:14:09] Speaker 04:
Do I, did you in the patent owner response say, by the way, this claim construction that you set out in the institution decision is incorrect.

[00:14:22] Speaker 04:
because it really should not have included this, any old difference will do.

[00:14:27] Speaker 01:
I know we did to the extent that we challenged their application of it, certainly, because any positioning above is certainly not the same as substantially above.

[00:14:41] Speaker 01:
It's just a flawed construction on its face.

[00:14:44] Speaker 01:
And I believe we challenged it maybe in a roundabout way when they applied it, but we did challenge it.

[00:14:51] Speaker 03:
Counsel, shall we save the remainder of your time for a bottle?

[00:14:55] Speaker 01:
Yes, thank you.

[00:14:59] Speaker 03:
Mr. Morton.

[00:15:02] Speaker 00:
Good morning.

[00:15:03] Speaker 00:
May it please the court, the board canceled each claim of the 864 patent on at least two and sometimes three grounds.

[00:15:10] Speaker 00:
And that outcome was driven by two things.

[00:15:13] Speaker 00:
First, another inventor, Rondeau, was first to invent.

[00:15:17] Speaker 00:
He was first to the patent office with the exact same concept.

[00:15:21] Speaker 00:
And second, the invention is nothing more than adding a motorcycle passenger seat to an ATV.

[00:15:27] Speaker 00:
Articat's conception documents literally say, quote, we added a two-passenger motorcycle seat.

[00:15:34] Speaker 03:
But your opposing counsel says Rondo isn't effective prior to that.

[00:15:39] Speaker 00:
Let me jump to that.

[00:15:40] Speaker 00:
One of the three big things to discuss today, I think, is certainly the dynamic drinkware decision.

[00:15:46] Speaker 00:
I think that they're just simply incorrect in how they're trying to use

[00:15:50] Speaker 00:
and read that decision.

[00:15:54] Speaker 00:
So the decision turns on Section 119E and its discussion of provisionals.

[00:16:01] Speaker 00:
And what it says in 119E is that if you have an application for an invention singular, then there's a written description requirement for the provisional.

[00:16:11] Speaker 00:
You have to show description of an invention or that invention in order to receive the date of the provisional.

[00:16:19] Speaker 00:
And that's all it says.

[00:16:20] Speaker 00:
There's no mention of all claims.

[00:16:22] Speaker 00:
It simply is their support for an invention.

[00:16:26] Speaker 03:
But each claim is theoretically a separate invention, right?

[00:16:31] Speaker 03:
So why doesn't it mean all the claims?

[00:16:36] Speaker 00:
Well, again, starting with the statute, the statute says... The invention.

[00:16:40] Speaker 00:
An invention.

[00:16:41] Speaker 00:
Singular.

[00:16:44] Speaker 00:
In Dynamic Drinkware,

[00:16:45] Speaker 00:
that actually quotes an earlier case, the new railhead decision, and cites the test completely correctly at that point in the decision.

[00:16:54] Speaker 00:
It says, in other words, the specification of the provisional must contain a written description of the invention.

[00:17:01] Speaker 00:
And it repeats the invention again in that quote of the earlier new railhead decision.

[00:17:05] Speaker 04:
But why doesn't this language, against the background of the Principal Jim Fleury mention, namely, we've repeatedly said, every claim defines

[00:17:15] Speaker 04:
a distinct invention, why doesn't this language of 119 call for something like a claim-by-claim priority determination?

[00:17:26] Speaker 00:
I give three reasons, Your Honor.

[00:17:29] Speaker 00:
First, if we go back to general principles... They didn't argue that.

[00:17:32] Speaker 04:
Put that aside.

[00:17:34] Speaker 00:
Just going back to general principles, the general principle is whoever was first to invent is first to invent.

[00:17:39] Speaker 00:
Somebody shouldn't get a patent that comes along

[00:17:41] Speaker 00:
later.

[00:17:42] Speaker 00:
That goes back to the Supreme Court Milburn decision.

[00:17:45] Speaker 04:
But that's a claim by claim determination.

[00:17:48] Speaker 00:
That was saying the original filing should count as prior art, notwithstanding delays in the patent office until the patent gets issued.

[00:17:55] Speaker 00:
So that's basic principles.

[00:17:57] Speaker 00:
119E simply adds for provisionals this requirement for an invention, again, singular.

[00:18:05] Speaker 00:
Then what happened, and if you look at earlier cases, new railhead,

[00:18:11] Speaker 00:
And the Giacomini case that's cited in our briefs, they're looking at just one claim.

[00:18:17] Speaker 00:
I mean, those courts, those parties understood an invention to be one claim.

[00:18:21] Speaker 03:
What happened in dynamic drinkware... Particularly the other claims, dependent claims, and encompassed by the invention.

[00:18:28] Speaker 00:
I agree with that part certainly.

[00:18:29] Speaker 00:
You know, claim one is the invention in Rondo.

[00:18:35] Speaker 00:
What happened in dynamic drinkware was that the petitioner was doing it completely wrong.

[00:18:39] Speaker 00:
They just assumed the provisional was all prior art and compared that to the challenged claims.

[00:18:46] Speaker 00:
They never made any attempt to compare it to the non-provisional prior art claims, or one claim, or all claims, or anything.

[00:18:54] Speaker 00:
So the court in dynamic drinkware, when it says claims plural, is simply saying, no, you have to compare the provisional to the claims of the non-provisional.

[00:19:03] Speaker 04:
For what it's worth, I don't have any doubt, actually,

[00:19:07] Speaker 04:
dynamic drinkware does not settle this question.

[00:19:09] Speaker 04:
The much harder question for me is, since we don't have a direct precedent settling it, what should be the correct answer?

[00:19:18] Speaker 00:
Certainly, Your Honor.

[00:19:19] Speaker 00:
And for that, I mean, I can only go back again to the statute, which says an invention singular.

[00:19:25] Speaker 00:
The earlier new railhead decision was looking at one claim and gives the same test quoted by dynamic drinkware, which is the invention singular.

[00:19:35] Speaker 00:
And so I think that's the correct answer.

[00:19:37] Speaker 00:
In addition, in this particular case, it's very similar to the Giacomini case, where Articat has not challenged the analysis in any way.

[00:19:46] Speaker 00:
All they have is this point, but when you look at our application of claim one of the non-provisional Rondo patent to the provisional, there is no argument below or on appeal that our analysis was incorrect.

[00:20:00] Speaker 00:
So any argument on that is waived, and that's the same situation that was present in the Giacomini case.

[00:20:07] Speaker 04:
I tried to suggest in my questioning to your opposite number, an issue about whether even if the board were wrong, maybe they haven't in this court shown prejudice, which would require them to identify something about Rondo claims two through nine that might not be supported by the provisional.

[00:20:36] Speaker 04:
Without that, there's no prejudice from even a, by assumption, erroneous focus only on claim one.

[00:20:46] Speaker 04:
What do you make of that?

[00:20:49] Speaker 00:
I guess I would agree with that.

[00:20:51] Speaker 00:
And factually, there is not any suggestion anywhere in the record below or on appeal that there's anything missing.

[00:21:01] Speaker 00:
It's just not there.

[00:21:02] Speaker 00:
So, you know, we made our showing.

[00:21:05] Speaker 00:
The board adopted it.

[00:21:06] Speaker 00:
And there's really no response to that other than this issue.

[00:21:09] Speaker 04:
Are you aware of the Supreme Court's request for the views of the Solicitor General in the Ariosa case that is pending in the Supreme Court about whether a provisional counts as prior art, even when there are no claims in

[00:21:34] Speaker 04:
the non-provisional application that is supported.

[00:21:39] Speaker 04:
It's a Milburn case.

[00:21:40] Speaker 04:
It specifically questions Wertheim.

[00:21:42] Speaker 04:
Does that have some bearing on what we have to decide here?

[00:21:49] Speaker 00:
Not really, Your Honor, because we showed one claim.

[00:21:53] Speaker 00:
We don't have that situation where there's no claims.

[00:21:55] Speaker 00:
We took claim one and applied it directly to the provisional.

[00:21:59] Speaker 00:
There's no dispute about that.

[00:22:00] Speaker 00:
When we applied it to the challenged claims, we double-sided

[00:22:04] Speaker 00:
utility application and the provisional for every point and there's no challenge on that analysis either.

[00:22:10] Speaker 03:
Aside from Rondeau, aren't the claims distinctive in reciting significantly and substantially higher?

[00:22:18] Speaker 00:
Sure, let me go to that issue.

[00:22:23] Speaker 00:
So the easiest path on that clearly is waiver because Arcticia never proposed any different construction below and never disputed that Rondeau

[00:22:32] Speaker 00:
has a substantially raised seat in the record below.

[00:22:35] Speaker 00:
They do on appeal, but it's not.

[00:22:37] Speaker 00:
It never was challenged below.

[00:22:39] Speaker 00:
So what happened, and I think we maybe covered this earlier, Articat proposed a construction in its preliminary response of not substantially on the same level as the driver's seating position such that the passenger has a better view of the oncoming terrain.

[00:22:55] Speaker 00:
There's no distinction in that proposal between raised and substantially raised.

[00:22:59] Speaker 00:
They just said not substantially on the same

[00:23:02] Speaker 00:
level.

[00:23:03] Speaker 00:
The board adopted that construction.

[00:23:05] Speaker 00:
During the trial, Polaris agreed, fine, that's the construction.

[00:23:09] Speaker 00:
ARTICAT never proposed a different construction, and the final written decision applies that construction.

[00:23:14] Speaker 00:
There's no different construction proposed on appeal.

[00:23:17] Speaker 00:
So there is no claim construction issue there.

[00:23:20] Speaker 00:
That issue is waived.

[00:23:22] Speaker 00:
What also happened is the board did give guidance as to what that means to the parties at institution, explaining that under ARTICAT's

[00:23:32] Speaker 00:
any amount of a raised seat, however minimal, visibly or otherwise, will meet the construction.

[00:23:39] Speaker 00:
And invited the parties, invited Articat to provide testimony, evidence, anything showing any other distinction or difference that there might be.

[00:23:48] Speaker 00:
And Articat did not do that.

[00:23:50] Speaker 00:
They didn't propose anything different or that that interpretation was wrong, given the words of their construction.

[00:23:57] Speaker 00:
So those arguments are waived.

[00:24:01] Speaker 00:
Again, they never disputed that Rondeau has a substantially raised seat.

[00:24:05] Speaker 00:
It does, and our evidence shows that for the other grounds, the Grinde grounds, they did say, try to say that the Grinde passenger seat was not substantially on the same level.

[00:24:17] Speaker 00:
They said it was on the same level, excuse me, but then their expert admitted in deposition that it's raised, that the Grinde seat is raised, and it would meet the construction as proposed by Articad.

[00:24:31] Speaker 00:
We've shown substantial evidence on those points of a seat that meets Ardicat's construction.

[00:24:37] Speaker 03:
Is there an issue about relying on Thompson here?

[00:24:41] Speaker 00:
Yes.

[00:24:42] Speaker 00:
Let me go to the Thompson issue, Your Honor.

[00:24:46] Speaker 00:
So Thompson, there's no underlying substance to this argument.

[00:24:51] Speaker 00:
We did not include Thompson in the petition grounds.

[00:24:54] Speaker 00:
And Thompson does not relied upon for any claim element in the final written decision.

[00:24:59] Speaker 00:
And there's no factual dispute.

[00:25:00] Speaker 00:
that the prior art that is relied upon in the petition and the final written decision has all of the various handle elements that were also discussed in Thompson.

[00:25:10] Speaker 00:
So why are we even talking about it?

[00:25:12] Speaker 00:
We cited it as knowledge of one of skill in the art, because it talks about handle limitations on a snowmobile, an Articad snowmobile, and it says various handholds are available within the knowledge of one of skill.

[00:25:26] Speaker 00:
And the board

[00:25:28] Speaker 00:
made more of it in the institution decision.

[00:25:30] Speaker 00:
Now there's three sets of grounds.

[00:25:32] Speaker 00:
For the Rondeau grounds, the board cited Thompson as backup, quote, backup, for the limitations about the handles extending upwardly from the rack main deck.

[00:25:43] Speaker 00:
But Articab never disputed below or on appeal that that element is present in Rondeau.

[00:25:48] Speaker 00:
We don't need Thompson.

[00:25:50] Speaker 00:
Thompson's irrelevant.

[00:25:52] Speaker 00:
Another set of grounds are Grindi plus the Cycle article.

[00:25:56] Speaker 00:
which is a motorcycle prior art.

[00:25:59] Speaker 00:
Thompson has never been a part of those grounds at any point.

[00:26:03] Speaker 00:
And so Thompson is irrelevant to affirmance on those grounds, which cancel all the claims.

[00:26:08] Speaker 00:
And the final set of grounds is Grindi plus Fecto, which is adding a snowmobile passenger seat and the handle limitations.

[00:26:17] Speaker 00:
There, the board had added Thompson to show the handles above the level of the driver's seat.

[00:26:24] Speaker 00:
But in the final written decision, they said without Thompson as prior art, we failed to meet our burden on claims one through eight.

[00:26:31] Speaker 00:
So we lost on that point in the final written decision.

[00:26:34] Speaker 00:
And again, Thompson is irrelevant to affirmance on the grounds that we want.

[00:26:40] Speaker 00:
So the board was very exacting on those issues and Thompson is simply irrelevant to the legal and factual findings of the board.

[00:26:51] Speaker 00:
So in conclusion,

[00:26:52] Speaker 00:
You know, the board's, I'll cede my remaining time unless there are more questions.

[00:26:56] Speaker 00:
The board's decision is very detailed.

[00:26:59] Speaker 00:
The only substantive challenge on appeal really is substantially raised, which I've said, you know, we've met substantial evidence standards.

[00:27:06] Speaker 00:
So we'd ask for affirmance in all respects.

[00:27:08] Speaker 03:
Thank you, counsel.

[00:27:11] Speaker 03:
Mr. McCloud has a little bottle time.

[00:27:14] Speaker 03:
Two minutes.

[00:27:17] Speaker 01:
Thank you, your honor.

[00:27:19] Speaker 01:
Just some quick points on what was raised.

[00:27:23] Speaker 01:
The court on the dynamic drinkware issue raised section 119 and section 112.

[00:27:31] Speaker 01:
Those are in the dynamic drinkware decision.

[00:27:34] Speaker 01:
But they're just building blocks.

[00:27:36] Speaker 01:
They're standing for the patent world knows rather unremarkable principle that every claim must find support.

[00:27:45] Speaker 01:
That's all they're saying.

[00:27:46] Speaker 01:
They're not modifying drinkware in any way.

[00:27:49] Speaker 01:
They don't suggest a reading of Drinkware in any way that says one claim is enough to pass this threshold test that I believe Drinkware sets up for us to vet prior art.

[00:28:02] Speaker 01:
On the claim construction issue that the board purported to adopt Articat's claim construction, which is supportable, which Articat's claim construction is supportable and meaningful,

[00:28:16] Speaker 01:
They did not use that construction.

[00:28:18] Speaker 01:
They simply did not.

[00:28:19] Speaker 01:
They used a construction that says basically any positioning above the driver's seat is enough to pass that.

[00:28:28] Speaker 01:
And it's clearly erroneous.

[00:28:29] Speaker 01:
It's erroneous under Phillips, certainly.

[00:28:31] Speaker 01:
And it's erroneous under the broadest reasonable interpretation standard.

[00:28:37] Speaker 01:
Equating anything above to substantially above is erroneous on its face, I'd suggest.

[00:28:44] Speaker 01:
The Thompson issue that was raised at the end, here's our point.

[00:28:49] Speaker 01:
Thompson, by counsel's own admission, is not in the grounds in their petition.

[00:28:54] Speaker 01:
It's not listed.

[00:28:55] Speaker 01:
They barely mention it in the body of their petition.

[00:28:59] Speaker 01:
You get to the institution decision, and suddenly five grounds have Thompson listed as a reference.

[00:29:06] Speaker 01:
Five separate grounds that weren't even in the petition.

[00:29:10] Speaker 01:
Ardicat successfully overcame the Thompson reference.

[00:29:14] Speaker 01:
That should be the end of the story for the five grounds listing Thompson in the institution decision.

[00:29:20] Speaker 01:
But it isn't.

[00:29:21] Speaker 01:
You get to the final written decision, those same grounds are there just removing the Thompson reference.

[00:29:27] Speaker 01:
It's a shifting target and the petition which is supposed to guide these proceedings is shifted.

[00:29:34] Speaker 01:
It's not the same

[00:29:36] Speaker 01:
as the institution decision or the final written decision.

[00:29:38] Speaker 01:
It's not following the guideline of the petition.

[00:29:40] Speaker 02:
To what extent did the institution decision rely on Thompson?

[00:29:46] Speaker 02:
Wasn't it just a backup?

[00:29:50] Speaker 01:
Well, the court, I think, chastised the board, chastised petitioner for attempting to use it as a backup and then used it actually in the grounds, though.

[00:30:02] Speaker 01:
They list five grounds in the institution decision

[00:30:05] Speaker 01:
that specifically recite Thompson with other references for an obviousness analysis.

[00:30:14] Speaker 03:
Thank you, counsel.

[00:30:15] Speaker 03:
We'll take the case under advisement.