[00:00:05] Speaker 03:
Next case is Arctic Cat versus Polaris again.

[00:00:10] Speaker 03:
This is 2018-1996.

[00:00:13] Speaker 03:
Mr. Jackson.

[00:00:15] Speaker 04:
Your Honors, if it would please the court, this is Jason Jackson.

[00:00:18] Speaker 04:
I'm representing appellate Arctic Cat.

[00:00:25] Speaker 04:
There are a number of errors below the PTAB, I think, that warrant reversal.

[00:00:29] Speaker 04:
But there's one that permeates all of the grounds and is a legal error.

[00:00:35] Speaker 04:
And specifically, that error is the board's holding or use of a reference, the proposition that a reference need only suggest an element of a claim.

[00:00:49] Speaker 04:
Now, petitioner and the board point to KSR for the suggest language.

[00:00:59] Speaker 04:
And they craft a suggestion rule, both the petitioner and the board,

[00:01:04] Speaker 04:
to supply two critical elements of claim one.

[00:01:10] Speaker 04:
This is a clear legal error, Your Honor, because the suggestion language in KSR is discussed in the context of a motivation to combine.

[00:01:19] Speaker 03:
What you have is a claim to a textured exterior portion.

[00:01:26] Speaker 03:
And you've got Tamashima, which is a design patent.

[00:01:32] Speaker 03:
But if you look at it, it

[00:01:35] Speaker 03:
It sure looks like the same as the drawings in your patent.

[00:01:42] Speaker 03:
You mentioned KSR.

[00:01:44] Speaker 03:
Can you imagine going before the Supreme Court and arguing the distinction between the 678 patent and Tamashima?

[00:01:53] Speaker 04:
Well, that would be an exciting argument.

[00:01:55] Speaker 04:
I do agree.

[00:01:57] Speaker 04:
But I think that the issue here is what was argued and what was relied on by the board.

[00:02:04] Speaker 03:
Well, it certainly relied on Tomashiba, didn't it?

[00:02:06] Speaker 04:
They relied on Tomashiba, but they relied on a brand new disclosure rule.

[00:02:10] Speaker 04:
Because this body is well aware, under Section 102, pre-AIA, elements have to be either expressly or inherently disclosed under reference.

[00:02:20] Speaker 04:
There is a, what do you call it, common sense doctrine that percolates out there.

[00:02:27] Speaker 04:
That's not an issue here.

[00:02:28] Speaker 04:
Neither the petitioner or the board have applied this common sense rationale.

[00:02:31] Speaker 04:
So the question is,

[00:02:34] Speaker 04:
Is there a third rule of disclosure that applies to design patents?

[00:02:37] Speaker 04:
I think the answer is no.

[00:02:39] Speaker 04:
I'm not aware of section 102.

[00:02:41] Speaker 03:
Are you saying that the design patent doesn't use the word textured?

[00:02:46] Speaker 04:
The design patent doesn't use any words.

[00:02:50] Speaker 04:
It simply claims the ornamental design for what's shown in the drawings.

[00:02:53] Speaker 04:
And the petitioner and the board don't even come out and say that the mud flap in Tamashima is textured.

[00:03:03] Speaker 04:
They say there are a couple of suggestions, maybe three, maybe four, probably more, that it can be maybe texture, stipple, maybe it can be a different material or a different color.

[00:03:15] Speaker 04:
And very tellingly below, they cite the wrong portion of the impact of the manual.

[00:03:20] Speaker 04:
The correct portion of the manual never says this grainy texture is used to indicate a functional surface treatment.

[00:03:31] Speaker 04:
And as the board correctly found,

[00:03:33] Speaker 04:
Nothing in the manual says that that is texture.

[00:03:39] Speaker 04:
So the claim, the interesting issue here, Your Honor, is that is there a third disclosure rule?

[00:03:44] Speaker 04:
Now, they cited to the... Is there a third rule of disclosure for section 102 that applies only to design patents.

[00:03:52] Speaker 04:
That's the interesting, I think, legal issue here.

[00:03:56] Speaker 02:
Tell me if I'm wrong.

[00:04:00] Speaker 02:
I guess I was recalling what the board said was there's an expert on the other side.

[00:04:05] Speaker 02:
The expert said, when I see a picture like this, it immediately tells me three things.

[00:04:13] Speaker 02:
It might be different color.

[00:04:15] Speaker 02:
It might be different material.

[00:04:16] Speaker 02:
It might be texture.

[00:04:18] Speaker 02:
So the actual teaching of this picture with no words to back it up, it being a design

[00:04:24] Speaker 02:
actually teaches three alternatives.

[00:04:28] Speaker 02:
So there's the element of texture.

[00:04:32] Speaker 04:
I understand that reasoning.

[00:04:33] Speaker 04:
My response, respectfully, Your Honor, is all of those three were suggestions, first of all, from their expert.

[00:04:39] Speaker 04:
He said it suggests one of three things.

[00:04:42] Speaker 04:
Two of those things, color, different color and different material, two or three of those things are not what's claimed.

[00:04:50] Speaker 04:
So it's actually

[00:04:51] Speaker 04:
unlikely in their own estimation, assuming that there are three possibilities, that would be the denominator.

[00:04:57] Speaker 04:
It's unlikely to disclose texture.

[00:05:01] Speaker 04:
And I don't know how big that denominator is.

[00:05:04] Speaker 02:
I guess I'm not quite sure what that means.

[00:05:05] Speaker 02:
Unlikely to disclose.

[00:05:06] Speaker 02:
It may be unlikely that the

[00:05:11] Speaker 02:
I forget, was it Kawasaki?

[00:05:14] Speaker 02:
That their actual vehicle had different texture.

[00:05:18] Speaker 02:
But who cares about the actual vehicle?

[00:05:21] Speaker 02:
The question is what this document teaches the skilled artisan.

[00:05:25] Speaker 02:
And it teaches three ideas.

[00:05:28] Speaker 02:
Color, material, texture.

[00:05:31] Speaker 04:
Well, first, we disagree that it teaches texture.

[00:05:36] Speaker 04:
There's no support in the manual.

[00:05:37] Speaker 02:
Puts that idea into the head of the relevant reader.

[00:05:40] Speaker 04:
We respectfully disagree for a number of reasons, Your Honor.

[00:05:43] Speaker 04:
First, the Kawasaki patent, excuse me, the Tamashima patent, predates the filing date by five years or so of the Articat patent, 678 patent.

[00:05:55] Speaker 04:
If all of these design pressures existed in the art, all the reasons they articulate over a number of pages that would have led to this invention made it obvious since 1920, if those pressures existed and Tamashima disclosed, hey, let's stipple per claim one,

[00:06:11] Speaker 04:
This is great and saves money and doesn't show scratching.

[00:06:14] Speaker 04:
No one in the five years since the Tamashima patent stippled their fender.

[00:06:21] Speaker 04:
And Kawasaki undoubtedly has and had numerous persons of ordinary skill in the art.

[00:06:27] Speaker 04:
They're a big manufacturer of ATVs that are on a long time.

[00:06:32] Speaker 04:
We were unable to locate any evidence showing that any Kawasaki ATV had this unitarily molded textured fender.

[00:06:41] Speaker 04:
So they didn't understand that as disclosing texturing.

[00:06:46] Speaker 02:
Well, maybe they just preferred not to use it.

[00:06:53] Speaker 04:
But the evidence that we have introduced, which has to be considered by the board, all of the evidence, I think refutes that and I think is useful as a way to interpret and understand what the Tamashima patent actually discloses.

[00:07:10] Speaker 04:
discloses a mudflap having a different color and a different material.

[00:07:17] Speaker 04:
And getting back, Your Honor, to their discussion of the Azlanian case, they cite that my understanding for the proposition that there is this third rule of disclosure.

[00:07:30] Speaker 04:
That's not what it says.

[00:07:34] Speaker 04:
The Azlanian case anchors its discussion

[00:07:38] Speaker 04:
of Inherency, and this is in our reply brief at page 4, angers its discussion of disclosure of InDesign patents and the Inherency doctrine, which is appropriate.

[00:07:50] Speaker 04:
The references have to expressly or inherently disclose all the elements of the claims.

[00:07:58] Speaker 04:
The petitioner below concedes that they're not arguing Inherency, so the question is, is it expressly disclosed?

[00:08:06] Speaker 04:
And if we take the smallest denominator in this case of three suggestions, we respectfully submit that one out of three is not an express disclosure.

[00:08:16] Speaker 04:
How big does the denominator get before we say, that's not express?

[00:08:21] Speaker 04:
Is one out of five not express?

[00:08:23] Speaker 04:
One out of 10?

[00:08:24] Speaker 04:
Is that express?

[00:08:25] Speaker 04:
And they themselves use the language of suggestion.

[00:08:29] Speaker 04:
They don't say, it effectively discloses, and here's what it teaches.

[00:08:31] Speaker 04:
They say, no, there are three possibilities.

[00:08:34] Speaker 04:
Suggest, suggest, suggest.

[00:08:37] Speaker 04:
And I'm not aware of any doctrine that graphs a third disclosure rule on Section 102 as they have applied it here.

[00:08:52] Speaker 04:
And I think there's one statement from the Board, Your Honor, that is very relevant for this error.

[00:09:02] Speaker 02:
And I gather that

[00:09:05] Speaker 02:
You must be saying that even though the only ground of rejection here is obviousness, not anticipation, that we need to apply, essentially, the 102-inherency or express standard at an element-by-element level.

[00:09:29] Speaker 02:
Just runner.

[00:09:31] Speaker 02:
That's what I guess maybe seems, to go back to what

[00:09:36] Speaker 02:
You and Judge Glory were having a chuckle about imagining arguing that to the Supreme Court.

[00:09:41] Speaker 04:
Well, I think it's bedrock law, Your Honor, because even in an obvious context, the first step is every element has to be disclosed in the prior arc.

[00:09:50] Speaker 04:
Only then do you get to combinations.

[00:09:53] Speaker 04:
Every element has to be expressly or inherently disclosed.

[00:09:56] Speaker 04:
That is a 102 disclosure rule, if you will.

[00:10:00] Speaker 04:
I don't think there's any modification outside of maybe, again, the common sense doctrine, which has not been applied here.

[00:10:07] Speaker 02:
What do you do with obviousness based on modification of a single reference?

[00:10:15] Speaker 02:
You wouldn't have a disclosure of the result of the modification.

[00:10:20] Speaker 04:
Well, they have to show in the art all of the elements are present in references A and B, and together they show A plus B, what is claimed.

[00:10:38] Speaker 04:
There's a very important statement by the board here that they repeated a couple of times.

[00:10:43] Speaker 04:
They admitted that Tamashima does not necessitate texture, does not necessitate.

[00:10:48] Speaker 04:
So putting aside what would be a lively argument at the Supreme Court on this issue, perhaps, the board's reasoning is flawed.

[00:10:57] Speaker 04:
They say it does not necessitate texture.

[00:11:00] Speaker 04:
They didn't find it expressly disclosism.

[00:11:03] Speaker 04:
They didn't find it inherently disclosism.

[00:11:06] Speaker 04:
They found the texture is

[00:11:08] Speaker 04:
One of three or probably more than three suggestions.

[00:11:11] Speaker 04:
So the board's reasoning here is legal error.

[00:11:14] Speaker 04:
That is what we submit.

[00:11:15] Speaker 04:
And it permeates all three grounds.

[00:11:19] Speaker 04:
There I think is some overlap with a common sense doctrine that this court has seen a handful of times.

[00:11:25] Speaker 04:
But again, that principle is not applied here by the petitioner or by the board below.

[00:11:39] Speaker 03:
You want to save the remainder of your time for a bottle?

[00:11:44] Speaker 03:
Or you can continue if you wish.

[00:11:49] Speaker 04:
Yes, Your Honor.

[00:11:50] Speaker 04:
I'll save my remaining time.

[00:11:51] Speaker 04:
Thank you.

[00:11:58] Speaker 03:
Mr. Morton, welcome back.

[00:12:02] Speaker 00:
May it please the clerk.

[00:12:03] Speaker 00:
Hello again.

[00:12:05] Speaker 00:
The 678 patent

[00:12:07] Speaker 00:
is not a technical improvement.

[00:12:09] Speaker 00:
It's undisputed that injection molding of vehicle body panels with smooth and textured portions was well known.

[00:12:17] Speaker 00:
The 678 patent is just about doing that on an ATV and where to put the textured portions.

[00:12:24] Speaker 00:
So it should be no surprise we relied on a design patent because really where to put the texturing is a matter of ornamental design choice.

[00:12:32] Speaker 00:
And this is why once the board concluded

[00:12:34] Speaker 00:
that texturing in areas that may be subject to scratching on an ATV is obvious.

[00:12:40] Speaker 00:
There's nothing else inventive about any particular location that may be scratched, so all the claims are obvious.

[00:12:47] Speaker 00:
And they were all found to be obvious on all three grounds.

[00:12:51] Speaker 00:
On appeal, Hardicat has raised multiple issues, but I would suggest that they are all being reviewed for substantial evidence.

[00:12:59] Speaker 00:
Where we have expert testimony,

[00:13:01] Speaker 00:
they show us not to depose our expert or to put in any counter-expert testimony.

[00:13:06] Speaker 02:
So it's really... Can you address what Mr. Jackson was, I think, focusing on principally, which is, is use of this design drawing, design patent drawing, that being made that is neither an inherency

[00:13:28] Speaker 02:
use as to what it teaches, nor, I think it's, nor a express teaching use, but a use based on what it suggests, though it doesn't expressly teach, and it, according to the board and I think the testimony, it suggests three possibilities.

[00:13:51] Speaker 02:
Is that

[00:13:54] Speaker 02:
But why is that a permissible way of deciding whether a claim element, even in an obvious analysis, is to be found in a particular reference?

[00:14:06] Speaker 00:
So I think you have exactly right what happened.

[00:14:09] Speaker 00:
Our expert put in testimony on this.

[00:14:12] Speaker 00:
The board cited that and credited that testimony as reliable on the three different possibilities and then applied to KSR teaching that

[00:14:20] Speaker 00:
There's a finite number of predictable solutions.

[00:14:24] Speaker 00:
Here it's different color, different material or texture.

[00:14:30] Speaker 00:
So I think that analysis is exactly following KSR for an obviousness analysis.

[00:14:36] Speaker 00:
And I liked the mention earlier, I was going to bring it up.

[00:14:38] Speaker 00:
You can have a one-reference obviousness case or decision where obviously you don't have every element there inherently or else it would be anticipation

[00:14:48] Speaker 00:
So you can show that based on the knowledge of one's skill in the art, a claim element is obvious.

[00:14:53] Speaker 02:
Would you be making the same argument if this were an anticipation case, that you don't have to have either an express teaching or a showing of necessity and therefore, inheritance?

[00:15:08] Speaker 00:
I would not.

[00:15:10] Speaker 00:
We did not argue in herency.

[00:15:12] Speaker 00:
The board did not find in herency.

[00:15:15] Speaker 00:
And if I was trying to argue anticipation,

[00:15:18] Speaker 00:
I know I have to show all the elements present in their efforts.

[00:15:22] Speaker 00:
But this is an obviousness case, so that's not what we're doing.

[00:15:26] Speaker 00:
A couple more points on that, Your Honor.

[00:15:31] Speaker 00:
First, the Articat has cited the Vivint decision, where the Board did rely on inherency to find a claim element.

[00:15:40] Speaker 00:
But in that case, this Court also concluded the error was harmless because

[00:15:45] Speaker 00:
another reference in the combination also disclosed that same element.

[00:15:50] Speaker 00:
And the same is true here.

[00:15:52] Speaker 00:
The board expressly found that Milonio for the first two grounds and Kia for the third ground disclosed smooth and textured surfaces on a unitarily molded part.

[00:16:04] Speaker 00:
And for Kia, it's specifically on a vehicle body panel.

[00:16:08] Speaker 00:
So this smooth and texturing, the idea of texturing, having that on a molded part

[00:16:13] Speaker 00:
That's in the other references as well.

[00:16:17] Speaker 00:
So when you look at the combination that way, all you need from Tamashima is the suggestion to do that on a straddle-ridden vehicle or on an ATV.

[00:16:26] Speaker 00:
The rationale being to apply the well-known solution, texturing, to the well-known problem, scratching of a smooth plastic surface.

[00:16:35] Speaker 00:
So the board's decision is very detailed on that topic and clearly supported by substantial evidence.

[00:16:44] Speaker 00:
And I guess I will suggest then that the easiest ground to affirm on is probably ground three, which is Tamashima plus Kia.

[00:16:55] Speaker 01:
As the board found... If we affirm on that ground, do all other arguments fail, Arctic Cats arguments?

[00:17:03] Speaker 00:
I'm sorry, I missed the question.

[00:17:05] Speaker 01:
If we affirm on that ground on Tamashima, then do all of Arctic Cats arguments fail, the remaining arguments?

[00:17:14] Speaker 00:
Yes.

[00:17:15] Speaker 00:
And I can address the other arguments, certainly.

[00:17:18] Speaker 00:
The Thomas Sheen, the one I was just finishing up, that Kia discloses unitarily.

[00:17:24] Speaker 01:
The point is that are the other arguments mainly attorney argument?

[00:17:28] Speaker 01:
There's no expert or any other type of evidence?

[00:17:32] Speaker 00:
All of the other arguments are clearly reviewed for substantial evidence, and they're just attorney argument versus our expert.

[00:17:42] Speaker 00:
points out at various points, we don't just have expert testimony, but our experts cited documentary evidence for each point that the board relies on.

[00:17:51] Speaker 00:
And so it is that showing and that evidence versus attorney argument on all the rest of the issues, the fender, motivation to combine, law and felt need that they raise, et cetera.

[00:18:03] Speaker 00:
So that is correct.

[00:18:05] Speaker 00:
And for that third ground, they really didn't argue anything about the Tamashima-Kia ground below.

[00:18:12] Speaker 00:
never disputing that Kia shows smooth and textured surfaces for vehicle body panels.

[00:18:18] Speaker 00:
You just apply that to a straddle-ridden vehicle and you have the invention.

[00:18:21] Speaker 00:
That's what the board found.

[00:18:23] Speaker 00:
There's no further argument on appeal on that ground three involving the Kia reference.

[00:18:32] Speaker 00:
I do have some more time.

[00:18:33] Speaker 00:
The last issue I was going to address is whether they waived arguments

[00:18:38] Speaker 00:
regarding the dependent claims, which have some of the specific locations of texturing.

[00:18:45] Speaker 00:
And the fact is that they did.

[00:18:47] Speaker 02:
And I think if I remember right, they make a fairly, I don't know, punchy point, which is what were we doing spending all this time arguing about the meaning of adjacent if it wasn't to make the point, which I think you can find in at least a sentence or two, that

[00:19:06] Speaker 02:
For some of the dependent claims, the relevant surfaces are not adjacent to the things they're supposed to be adjacent to, like the leg.

[00:19:15] Speaker 00:
Sure.

[00:19:16] Speaker 00:
We addressed adjacent.

[00:19:18] Speaker 00:
So what happened on that term was there was a claim construction dispute.

[00:19:23] Speaker 00:
We said adjacent means near.

[00:19:26] Speaker 00:
They said it means it shares a common border with.

[00:19:29] Speaker 00:
And the board adopted neither of those constructions.

[00:19:31] Speaker 00:
The board went with next to.

[00:19:34] Speaker 00:
And in rejecting their construction of shares of common border width, they decided our experts' testimony to do that.

[00:19:42] Speaker 00:
So they lost the claim construction they wanted, and they haven't appealed that law.

[00:19:47] Speaker 00:
So we have that same claim construction.

[00:19:50] Speaker 02:
Right, but I guess if I remember right, I'm pretty sure this is right, that they argued about the claim construction in the patent owner response, and the board addressed the claim construction issue.

[00:20:04] Speaker 02:
Your view is that the board could determine that they didn't actually make any substantive argument based on the now construed adjacency term?

[00:20:19] Speaker 00:
I grant you that it's odd, but that is the case, your honor.

[00:20:23] Speaker 00:
Once they did, if you look at the patent owner response, they have their claim construction section on a date adjacent.

[00:20:30] Speaker 02:
But then after that, when you're talking about applying any construction to the prior art, they only argue about... In your reply, did you say to the board, you don't need to resolve the adjacency claim construction because there is no argument on the substance that applies that claim construction?

[00:20:55] Speaker 00:
I'm not a thousand percent sure what we said.

[00:20:58] Speaker 00:
We addressed it substantively for sure.

[00:20:59] Speaker 00:
So I think what we said was, they didn't make any argument or put in any evidence, and we are correct on the evidence, and went on to argue it substantively.

[00:21:09] Speaker 00:
Their arguments were on the texturing on Tamashima, motivation to combine fender, terms, and load contact.

[00:21:17] Speaker 00:
They simply didn't argue in connection with any of the prior art, anything about adjacent to leg, adjacent to leg and the knee, adjacent to seat,

[00:21:28] Speaker 00:
They simply just did not put that in the patent order response.

[00:21:31] Speaker 00:
And we still addressed it substantively, and the board still credited that.

[00:21:35] Speaker 00:
I mean, our expert went through adjacent, explained why it's obvious, cited prior art references for straddle-ridden vehicles.

[00:21:44] Speaker 00:
There are motorcycles, Genteel and Wolanski references, to show that a person of ordinary skill in the art is going to understand where to put texturing or where scratching may occur.

[00:21:54] Speaker 00:
So he went through all that analysis,

[00:21:56] Speaker 00:
And that analysis was credited, cited by the board.

[00:22:00] Speaker 00:
And that's our evidence versus, again, no arguments in the Patent Order response at all.

[00:22:06] Speaker 00:
And to the extent we're here today, I guess, attorney arguments on appeal.

[00:22:13] Speaker 00:
I think that's all the issues.

[00:22:14] Speaker 00:
The other issues didn't come up.

[00:22:17] Speaker 00:
And they're just substantial evidence issues where we have evidence and they do not.

[00:22:21] Speaker 00:
And so again, I think I'll, unless there's further questions, I'll seek my remaining time

[00:22:25] Speaker 00:
and ask for affirmance on all grounds.

[00:22:28] Speaker 03:
Thank you, counsel.

[00:22:29] Speaker 03:
Mr. Jackson has some little bubble time if he needs it.

[00:22:42] Speaker 04:
Yes, Your Honor.

[00:22:43] Speaker 04:
Again, Polaris presents a misinterpretation of KSR.

[00:22:52] Speaker 04:
It's very sneaky.

[00:22:56] Speaker 04:
But the suggestion language in KSR and the surrounding cases relate to a suggestion to combine references.

[00:23:04] Speaker 04:
It is not a disclosure rule, which has to be expressed in parent.

[00:23:12] Speaker 04:
As to the waiver issue, we discussed this at length in our reply brief.

[00:23:21] Speaker 04:
You cite on page 16 of our reply brief

[00:23:24] Speaker 04:
portion of our patented response where we say the petition also fails to specifically show how the references disclose the elements when the adjacent terms are construed under the BRI.

[00:23:34] Speaker 04:
So we did not waive that issue.

[00:23:37] Speaker 04:
And then I think, Your Honor, when this panel asked if ground three would resolve all issues, I think the answer is clearly no.

[00:23:50] Speaker 04:
The lowest hanging fruit

[00:23:54] Speaker 04:
would be the board's discussion in the final written decision of dependent claims seven through nine.

[00:24:03] Speaker 04:
That's an appendix 32.

[00:24:04] Speaker 04:
They dispose of claims seven and nine with one sentence.

[00:24:10] Speaker 04:
They say for the reasons set forth in the petition, which is supported by the cited evidence, we are persuaded that the petitioner is correct.

[00:24:18] Speaker 04:
Well, this court has repeatedly chastised the board for

[00:24:23] Speaker 04:
incorporating arguments from a petition by reference and using that as their sole finding to hold claims impassable.

[00:24:38] Speaker 04:
There's just no there there in the board's discussion of dependent claims seven through nine.

[00:24:43] Speaker 04:
One sentence.

[00:24:45] Speaker 01:
Did you present any expert testimony or evidence in this case?

[00:24:50] Speaker 04:
We did, Your Honor, but we did not rely on it.

[00:24:53] Speaker 04:
for these arguments.

[00:24:56] Speaker 01:
What else is the board to say in a situation like this, where one side presents expert evidence, the other side does not?

[00:25:09] Speaker 04:
Sure.

[00:25:09] Speaker 04:
Well, first and foremost, Your Honor, as a matter of procedure for dependent claim 739, they have to present their factual findings.

[00:25:16] Speaker 04:
A one-sentence incorporation by reference or citation back simply isn't enough.

[00:25:23] Speaker 04:
There are a number of holdings from this court on this point.

[00:25:27] Speaker 04:
That's not enough procedurally.

[00:25:29] Speaker 04:
At a minimum, I think that warrants a remand.

[00:25:32] Speaker 04:
What is their reasoning?

[00:25:33] Speaker 04:
We don't know.

[00:25:36] Speaker 04:
For Claims 7 through 9.

[00:25:36] Speaker 04:
Did that answer your question, Your Honor?

[00:25:40] Speaker 04:
Yes.

[00:25:42] Speaker 04:
And then I'd like to point this court to Claims 4 through 5, which Judge Sorrento briefly mentioned.

[00:25:53] Speaker 04:
We agree with the board's claim construction for purposes of this appeal that adjacent means touching or an inconsequential gap.

[00:26:04] Speaker 04:
But if you look at Tamashima, if you look at the points on that ATV that they identify as adjacent, the leg of the rider, for example, they're nowhere close.

[00:26:16] Speaker 04:
They're not touching and they're not in a consequential gap.

[00:26:19] Speaker 04:
And this is claims four or five.

[00:26:21] Speaker 02:
Unless the foot is part of the leg.

[00:26:26] Speaker 04:
Right.

[00:26:27] Speaker 04:
Even then, I don't see a touching or any consequential gap.

[00:26:31] Speaker 04:
Those side fenders, which in the Kawasaki evidence are removable, different color, looks to be different material.

[00:26:39] Speaker 04:
A writer doesn't impact those when they're getting on an ATV.

[00:26:42] Speaker 04:
In fact, their expert apparently has never written one.

[00:26:45] Speaker 04:
He doesn't testify that he has.

[00:26:47] Speaker 04:
You don't get on an ATV that way.

[00:26:52] Speaker 04:
And that is why the 678 patent doesn't identify the signs of the fenders or the footwells as body panels that need texturing.

[00:27:04] Speaker 04:
They're not the beauty panels, if you were.

[00:27:07] Speaker 04:
And the Tamashima reference fundamentally discloses a prior art ATV.

[00:27:14] Speaker 04:
If you look at the alleged texturing, assume that it's texturing, it's in the places that are exactly not

[00:27:21] Speaker 04:
texture in the 678 patent.

[00:27:24] Speaker 03:
That's not what the 678 patent is about.

[00:27:25] Speaker 03:
Council, as you can see, your time has expired.

[00:27:29] Speaker 03:
We'll take the case on revisement.

[00:27:30] Speaker 04:
Thank you, Your Honor.