[00:00:22] Speaker 05: And that means both matters will stand submitted. [00:01:19] Speaker 05: Council. [00:01:34] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:01:36] Speaker 00: This case is about the location of an air inlet on a passenger vehicle. [00:01:41] Speaker 00: Do you agree that claim one is illustrative? [00:01:48] Speaker 00: I think that there are certainly differences. [00:01:52] Speaker 00: There were two sets of claims here. [00:01:54] Speaker 00: I think it's the error. [00:01:56] Speaker 00: Well, let me cite this way, Your Honor, and I hope this answers your question. [00:01:59] Speaker 00: The error in claim one infects the remainder of the claim. [00:02:02] Speaker 00: So if Your Honors were to find that there was an error with the treatment of claim one, I think that would require addressing the remainder of the claims. [00:02:09] Speaker 05: Supposing we find no error in the treatment of claim one? [00:02:14] Speaker 00: If you find no error in the treatment of claim one, I think that the judgment of the board stands. [00:02:19] Speaker 05: On page 11 of the red brief, Polaris says that the board found that a person of skill, quote, would understand since it all discloses a vehicle, I'm quoting, with the CVT area intake. [00:02:36] Speaker 05: I'm inserting here, air intake inlet covered from above, close quote, and that you don't challenge that finding effect on appeal. [00:02:46] Speaker 00: Is that correct? [00:02:47] Speaker 00: That's correct, Your Honor. [00:02:48] Speaker 00: And that was a separate ground that we had to raise as a motivation to combine. [00:02:51] Speaker 00: But it was distinct from the ground that we're challenging on appeal here. [00:02:57] Speaker 00: As the we're narrowing things yes sure, but that is correct that that is correct the ground we're challenging on appeal is this blockage issue and as the board found below Had any of these grounds been sufficient to provide a motivation to combine it would have been enough on page 16 of the Blueberry You say the board excluded evidence that passenger compartment inlets are susceptible to blocking [00:03:24] Speaker 05: Show me in the record where they excluded evidence. [00:03:27] Speaker 05: Or do you mean your denial of our motion? [00:03:31] Speaker 05: That is what I mean. [00:03:31] Speaker 00: I mean the denial of our motion. [00:03:34] Speaker 00: For additional discovery. [00:03:36] Speaker 00: Yes, Your Honor. [00:03:36] Speaker 05: That's not exclusion of evidence, is it? [00:03:40] Speaker 00: Well, maybe it's a problem with the way we worded it. [00:03:43] Speaker 00: Or those legal words. [00:03:45] Speaker 00: Yes, there was not evidence that they looked at it and excluded it. [00:03:48] Speaker 00: In fact, they didn't look at it because we weren't permitted to present it because of the protective order issue. [00:03:53] Speaker 00: That was, when I referred to that, Your Honor, that was the denial of our motion, yes. [00:03:58] Speaker 05: On page 16 of the Gravery, you say that Polaris took the position in the IPR that a person still, quote, would not believe there were blockage issues with Sunstall. [00:04:10] Speaker 05: The board on page 48 of the Joint Appendix says that this mischaracterizes Polaris's argument. [00:04:21] Speaker 05: How's the board wrong? [00:04:23] Speaker 00: I think that the board is wrong here. [00:04:25] Speaker 00: The board is wrong in its analysis because what we said was you have two vehicles at issue here. [00:04:33] Speaker 00: You've got the Sunstall vehicle. [00:04:35] Speaker 00: and you've got the razor vehicle, which was the embodiment of the sonsaw vehicle. [00:04:41] Speaker 00: The board found that in its final decision. [00:04:44] Speaker 00: That's not disputed here on appeal. [00:04:45] Speaker 00: I think where the board got it wrong is [00:04:52] Speaker 00: Our point in our motion to the board was you have two vehicles, both of which have an air inlet in the passenger compartment. [00:05:00] Speaker 00: And so when there is testimony in the district court from Polaris's witnesses that a vehicle, the Razor vehicle with inlets in the passenger compartment, had known blockage issues which could have been solved by moving the air inlet to the side, that testimony [00:05:20] Speaker 00: of the physical embodiment of Sunstall is directly relevant to the argument with respect to Sunstall. [00:05:27] Speaker 00: And I think the board's sort of shifted between its decision on the evidentiary issue where it, for whatever reason, wasn't making that connection to its final written decision. [00:05:38] Speaker 00: But those facts, that it's an embodiment and they both have a location in the passenger compartment, are undisputed here. [00:05:49] Speaker 00: I want to talk a little bit about this issue, this problem-based motivation that the board was stuck on. [00:05:57] Speaker 00: The purpose of side air inlets, as we talk about in our brief, is to bring cool, clean air into the vehicle, whether it's the CVT or the engine. [00:06:08] Speaker 00: And so in order to do that, you need to position the air inlets where they're going to receive that cool, clean air. [00:06:14] Speaker 00: And the Brown patent teaches that. [00:06:16] Speaker 00: Unlike the Sunstall patent, which has the error inputs. [00:06:20] Speaker 01: Where in the record below did you argue? [00:06:23] Speaker 01: I think I saw that you had four reasons for modification. [00:06:26] Speaker 01: And this co-claim error one, I don't think that was presented to the board. [00:06:31] Speaker 00: Yeah, so Your Honor, if you go to our appendix here, it's in page 26 through [00:06:45] Speaker 00: 30 which is starting in appendix 196 And what what we say, and this is appendix 197 is And what is this document? [00:07:01] Speaker 00: I'm looking at you are looking at our petition, okay? [00:07:05] Speaker 00: and in our petition what we say is that [00:07:09] Speaker 00: On page 197, we talk generally about Brown and Suzuki. [00:07:13] Speaker 00: We say a person of ordinary skill would have been motivated to implement that configuration for the purposes of achieving several known benefits. [00:07:21] Speaker 00: And then when you move to page 29, we say one of those benefits is a reduced likelihood of object passengers blocking or restricting the flow of cooling fresh air into the CVT. [00:07:32] Speaker 00: And so that's what I'm talking about when we talk about. [00:07:34] Speaker 01: Yeah, but wasn't that more like if something got stuck in there? [00:07:39] Speaker 01: because there was an understanding that the inlet was open? [00:07:46] Speaker 00: No, Your Honor. [00:07:47] Speaker 00: I think it's really two things. [00:07:48] Speaker 00: And Dr. Davis, our expert, talks about this as well in his declaration. [00:07:54] Speaker 00: But it's really two things. [00:07:56] Speaker 00: So that location on the outside of the vehicle has a benefit of getting that flow of cool, fresh air as an absolute matter, whether Sunsdall is blocked or not. [00:08:09] Speaker 00: That's a benefit of that location. [00:08:10] Speaker 00: And that's why we phrase it the way we did. [00:08:13] Speaker 00: And we say, look, it gives you that benefit. [00:08:15] Speaker 00: And that benefit is particularly poignant here. [00:08:19] Speaker 01: This says reduce the likelihood of objects or passengers blocking the flow of cold, fresh air. [00:08:26] Speaker 01: It doesn't say there isn't a good flow of cold, fresh air in the location where it's currently. [00:08:33] Speaker 01: I understand what you're saying. [00:08:37] Speaker 01: We'll just leave it at that. [00:08:38] Speaker 00: OK. [00:08:39] Speaker 01: I mean, the way you phrased it here, blocking or restricting, the board, as I understand it, thought that you meant that you're actually, people are blocking it, not that there's a better location for cold, fresh air on the side of the vehicle versus in the middle of the vehicle. [00:08:54] Speaker 00: And I think that's an argument the Polaris highlighted in the patent owner response, too. [00:08:58] Speaker 00: And so in our reply, we went back and we said that this is, we cited the unwired planning case in our reply, we said, [00:09:06] Speaker 01: Your honors, you're saying in your reply before this court. [00:09:10] Speaker 00: I'm sorry. [00:09:10] Speaker 00: No, in our reply to the board. [00:09:12] Speaker 00: OK, so we've made the point in our petition. [00:09:15] Speaker 00: Polaris says in their response, to double down on this blockage issue, we say, in our reply, you can't board rely on just the problem. [00:09:24] Speaker 00: There is the positive motivation, so to speak, of this location outside the Brown location providing for that better airflow. [00:09:33] Speaker 06: Why does Brown do a better job of that than Suzuki in terms of blocking or restricting airflow? [00:09:41] Speaker 00: Yeah. [00:09:41] Speaker 06: As far as we know, Suzuki is down underneath someplace, right? [00:09:45] Speaker 00: Yeah, so what Brown does as a better job is Suzuki teaches the general idea of extending from the CVT. [00:09:55] Speaker 06: Suzuki's sucking in air down below somewhere. [00:09:58] Speaker 00: Yeah, and that's somewhere, Your Honor, what our experts are saying. [00:10:00] Speaker 06: Why is there any showing that Brown solves the blockage problem any better than Suzuki? [00:10:07] Speaker 06: Because we're showing that there's a problem with air intake in Suzuki. [00:10:13] Speaker 00: Well, again, our point with respect to Suzuki is that what Suzuki, the patent, says is it's still potentially enclosed by that paneling. [00:10:24] Speaker 00: And so what we said is that Brown provides a location that facilitates cool air without the interference that would arise if the intake were enclosed or otherwise obstructed by side paneling. [00:10:35] Speaker 00: So Suzuki moves the area. [00:10:37] Speaker 06: We don't know. [00:10:38] Speaker 06: Suzuki's drawings don't tell us where it actually, the opening is that sucks the air in. [00:10:44] Speaker 00: But what it does say is that it could be partially enclosed. [00:10:48] Speaker 00: Brown provides that additional motivation, Your Honor. [00:10:51] Speaker 00: It tells us explicitly what Suzuki may suggest. [00:10:54] Speaker 00: It tells us explicitly you can move that in a vehicle with paneling, like the Sunstar vehicle, you can move that inlet out to the side paneling and get those benefits to the pool first. [00:11:05] Speaker 06: To expose it to the open air, where it could suck in leaves and all sorts of other things. [00:11:10] Speaker 00: And that is potentially, Your Honor. [00:11:13] Speaker 00: I don't think that the problem, though, with that rationale is [00:11:17] Speaker 00: and Polaris points to some of these potential downsides. [00:11:20] Speaker 00: The problem with using those as a basis to affirm, so to speak, is the board never performed the weighing on the other side of the scale. [00:11:30] Speaker 00: And so I think what they're really asking you to do is. [00:11:33] Speaker 06: And Brown's irrelevant unless you get passed. [00:11:36] Speaker 06: You've got to get Suzuki and the other one combined, right? [00:11:41] Speaker 00: Well, I think what we're sort of proposing, Brown and Suzuki, [00:11:45] Speaker 00: collectively teach something. [00:11:46] Speaker 05: Yeah. [00:11:47] Speaker 05: You argue that at 19, that the PTAP did not consider Arctic Cat's arguments about the Brown reference. [00:11:59] Speaker 05: You say they failed to consider any of Arctic Cat's evidence on this issue or address its arguments in any way. [00:12:07] Speaker 05: That's just not true. [00:12:10] Speaker 05: But what the board did is it found it unsupported. [00:12:13] Speaker 05: They say even accepting that a person of skill would have been motivated to combine Sunsdall and Suzuki, Arteket, quote, has not explained why there would have been reason to further modify the combination in view of Brown to extend the inlet. [00:12:31] Speaker 05: Finding an argument unsupported isn't the same as failing to consider it. [00:12:37] Speaker 00: The board is still stuck on their problem-based motivation there. [00:12:41] Speaker 00: They do say, you're right, on page 39 of the appendix, they say Suzuki solves this problem. [00:12:47] Speaker 00: But they then don't go on to address the additional motivations that were provided by Brown, which we have that cool fresh air running by, as opposed to being near the engine, or potentially encapsulated by the paneling at Suzuki. [00:13:03] Speaker 00: could potentially be. [00:13:04] Speaker 00: So there's nowhere where the board addresses that argument. [00:13:12] Speaker 01: Earlier you said that in your reply brief you made clear the point that locating the inlet on the exterior of the car provides more access to cold air. [00:13:24] Speaker 01: That you clarified that or supplemented it in your reply brief. [00:13:30] Speaker 01: Is it proper for the board to consider arguments that are made for the first time in a reply brief? [00:13:36] Speaker 01: Just assuming for a minute that it's made. [00:13:38] Speaker 01: I understand you have a different view of whether it was made in the petition or not. [00:13:42] Speaker 00: I think that this court has said that if an argument is raised wholesale new in the reply brief, the board need not consider it. [00:13:50] Speaker 01: Because your complaint is that the board didn't consider it, right? [00:13:56] Speaker 00: Yes, our complaint is that the board did not consider it. [00:13:58] Speaker 00: I think we raised it in our petition. [00:14:00] Speaker 00: We raised it in our opening declaration of our expert. [00:14:03] Speaker 00: I think there's some clarification that goes on as the issues get funneled, and that's what was happening in our applied brief, not a wholesale raising of a new issue. [00:14:11] Speaker 05: You're in your response. [00:14:13] Speaker 05: Thank you, Your Honor. [00:14:14] Speaker 05: I'd like to reserve it unless Your Honor took further questions. [00:14:45] Speaker 05: You know, before your time starts to run, go ahead, whatever you're doing. [00:14:51] Speaker 05: You moved to use this and permitted it. [00:14:53] Speaker 05: But I was saying to the other judges that we ought to require counsel when they do this kind of thing to sign a waiver saying if anybody breaks anything of their own, like a leg, we're not responsible for what they did. [00:15:07] Speaker 02: I think that's fair. [00:15:11] Speaker 02: May it please the court. [00:15:14] Speaker 05: Mr. Carlson, do you agree that claim one is illustrative? [00:15:19] Speaker 04: With respect to the others, yes. [00:15:21] Speaker 04: Whatever happens with claim one would affect all the others. [00:15:25] Speaker 04: But Arctic's appeal and the argument today ignores a fact that undermines its entire case, and that is that the IPR was built on a fatally defective construction of the Sunsdall reference. [00:15:41] Speaker 04: And what I've done is to show you a page from the reference showing figure 25. [00:15:50] Speaker 04: And what they did was they took this figure out of context of the rest of the patent. [00:15:57] Speaker 05: And the record will reflect that you're drawing in pink on that exhibit. [00:16:00] Speaker 03: Yes, I drew on pink. [00:16:04] Speaker 03: I drew on the figure 25 to identify the part 218. [00:16:08] Speaker 04: Good. [00:16:08] Speaker 04: And they took that out of context. [00:16:11] Speaker 04: And they said that what this shows is that the inlet is open to the sky. [00:16:17] Speaker 04: But the board thoroughly examined the reference. [00:16:20] Speaker 04: And that proved to be a mistake. [00:16:22] Speaker 04: It proved to be a fatal mistake because their entire case was based upon that. [00:16:28] Speaker 04: They're the master of their petition. [00:16:32] Speaker 04: They decide what reference they want to rely upon, and they decide what the arguments are that they want to use relative to that reference. [00:16:40] Speaker 04: And that's the reference they relied upon and the configuration that was the basis of their entire case, and in particular, [00:16:47] Speaker 06: The motivation that they raised. [00:17:03] Speaker 04: Right. [00:17:04] Speaker 04: What they were saying is that's a terrible configuration. [00:17:08] Speaker 05: If it was true, it would be. [00:17:09] Speaker 04: It would be a terrible configuration if it were true, yeah. [00:17:12] Speaker 06: They said, look, what you're going to do is you're going to get water, you say bird eggs, you're going to get... Drop your iPhone and suck your iPhone right down into the motor. [00:17:22] Speaker 04: But that was their petition. [00:17:26] Speaker 06: Right, but we shouldn't pick on somebody who made a mistake. [00:17:29] Speaker 04: Well, it's more than that because it's the basis of their petition. [00:17:33] Speaker 04: It formed what it was that we tried. [00:17:36] Speaker 04: That was our trial, whether that device would have caused people to be motivated to modify it per Suzuki. [00:17:48] Speaker 04: That's how they get to Suzuki, because that device would have problems with water, they said, with noise. [00:17:55] Speaker 04: And there was a third thing that they said it was likely to be blocked. [00:18:01] Speaker 04: Clothes, spare clothing. [00:18:02] Speaker 04: Yeah, you can see all those things. [00:18:06] Speaker 04: But the fact is that, as the board found, that wasn't what Suzuki referenced disclosed. [00:18:14] Speaker 04: It's a cutaway. [00:18:15] Speaker 04: It was a cutaway, they said. [00:18:18] Speaker 04: But all of their motivations were based upon that. [00:18:20] Speaker 04: And motivations are an issue of fact. [00:18:24] Speaker 04: And the board found that none of the motivations were accurate. [00:18:29] Speaker 04: And they have not appealed, not only [00:18:31] Speaker 04: the finding on Suzuki, they haven't appealed the lack of motivations. [00:18:36] Speaker 01: What about the motivation that was argued before us today about how the air that's on the external part of the car provides the inlet more access to cooler air by placing it externally? [00:18:51] Speaker 04: And that goes to what we call step two. [00:18:55] Speaker 04: What they said was that there are two steps to the invention. [00:18:58] Speaker 04: The first step is to combine [00:19:01] Speaker 04: Sunstall and Suzuki. [00:19:03] Speaker 04: And then we get, they said, to step two, which is to then use Brown to decide to put the inlet on the side of the vehicle. [00:19:13] Speaker 04: Now, with respect to that, the court said, look, there's no motivation there either. [00:19:18] Speaker 04: And they say, well, the court didn't deal with this cool air. [00:19:24] Speaker 04: Well, it was brought in late, but nevertheless, the court did deal with it. [00:19:28] Speaker 04: There's no basis to [00:19:30] Speaker 04: to conclude that the court didn't deal with it except to say that if they, let me put it this way, there's no basis for the claim that the air on the side is any cooler than Sunsdall or Suzuki under either of the two configurations of Suzuki. [00:19:54] Speaker 04: Suzuki said you might have a side panel. [00:19:57] Speaker 04: Or you might not. [00:19:59] Speaker 04: But if the board, unfortunately, did not reference this, but if they had referenced what they would have said was that, what do you mean, cool air? [00:20:13] Speaker 04: There's nothing about cool air here. [00:20:15] Speaker 04: It's not in the record? [00:20:18] Speaker 04: Well, they referenced Brown. [00:20:20] Speaker 04: I mean, they did reference it. [00:20:21] Speaker 04: Well, they considered Brown. [00:20:23] Speaker 04: But the problem was that there was no record at all [00:20:27] Speaker 04: that the air in Brown was any cooler than any of the other references. [00:20:33] Speaker 04: Since you're riding around in Arctic temperatures. [00:20:37] Speaker 04: And in fact, what they said was that there are negatives to having on the side. [00:20:43] Speaker 04: As you point out, material can get in it if it's in the side. [00:20:48] Speaker 04: And they showed a photo. [00:20:49] Speaker 06: Longer pipe, just more material, longer pipe. [00:20:53] Speaker 04: Well, that was another problem. [00:20:54] Speaker 04: Because with a longer pipe, you're going to have more vibration. [00:20:59] Speaker 04: You're going to have more weight. [00:21:01] Speaker 04: You're going to bring the... That was all said. [00:21:05] Speaker 04: All that was said by the court. [00:21:06] Speaker 04: So what they didn't do was to actually mention the words that these folks are maintaining that the air is cool. [00:21:16] Speaker 04: And they probably didn't do that because there was no basis for the fact that the air out there [00:21:22] Speaker 04: was any better than in any of the other references. [00:21:27] Speaker 04: You're riding around in an open vehicle, it appears. [00:21:33] Speaker 05: I'm sorry. [00:21:33] Speaker 05: I didn't quite hear you. [00:21:34] Speaker 05: It's not air sealed. [00:21:36] Speaker 05: The vehicle itself is not air sealed, it appears from looking at the drawing. [00:21:41] Speaker 04: The vehicle is not sealed, no. [00:21:44] Speaker 04: No. [00:21:45] Speaker 06: These are- Well, an air intake can't be blocked. [00:21:50] Speaker 06: An air intake that has a lid on it, air doesn't come in, right? [00:21:54] Speaker 06: So with all these devices, the air is going to get in there somehow, right? [00:21:58] Speaker 06: And the air doesn't even have to be cool. [00:22:00] Speaker 06: I mean, you have air cool, the notion that it has to be cooler than what? [00:22:07] Speaker 04: There's no record on that. [00:22:08] Speaker 04: And in particular, as I say, there's no record of the fact that in a Brown device, where you go to step two, your honor, [00:22:20] Speaker 04: that that air is any better than the air or cooler than the air in Sun's doll or Suzuki. [00:22:28] Speaker 04: There's just no record on that. [00:22:30] Speaker 04: That's their theme. [00:22:32] Speaker 04: It's their rhetoric. [00:22:34] Speaker 06: Why do you need Brown at all if they can't prove that one skill in the art would have gone to the [00:22:42] Speaker 06: step of moving it to the side as opposed to coming up supposedly through the top. [00:22:47] Speaker 04: That's my point. [00:22:47] Speaker 04: The case is over, isn't it? [00:22:48] Speaker 04: This thing fails for the lack of being able to prove step one or step two. [00:22:55] Speaker 06: That's what I mean. [00:22:55] Speaker 06: Why, you don't get to Brown until you're halfway to the side of the curve. [00:22:59] Speaker 04: And I think the board said that. [00:23:02] Speaker 04: Yeah. [00:23:03] Speaker 04: So it failed for both of those reasons. [00:23:06] Speaker 04: Now, they didn't talk about the discovery motion [00:23:11] Speaker 04: and I'll pass on that unless you have some questions. [00:23:15] Speaker 04: I think they mentioned it. [00:23:20] Speaker 04: Okay, yeah, I think he mentioned he didn't get into it. [00:23:22] Speaker 04: I asked a question. [00:23:25] Speaker 04: The problem with their discovery motion was that they were asking for some depositions that related to a different structure of [00:23:40] Speaker 04: than Sun's doll, as they were claiming Sun's doll was configured. [00:23:48] Speaker 04: And the problem was created further by the fact that they never even said that that structure that is the subject of depositions [00:24:03] Speaker 04: was the Sunsdall structure. [00:24:04] Speaker 04: They never said it's made in accordance with the claims. [00:24:07] Speaker 04: They never said anything like that. [00:24:09] Speaker 04: What they claimed was that the depositions relate generally to the problems you're going to have if you have an inlet that is near the passenger compartment. [00:24:19] Speaker 04: And the board said, well, wait a minute. [00:24:22] Speaker 04: That's not what Polaris' argument is. [00:24:25] Speaker 04: Polaris is saying Sunsdall doesn't have a problem. [00:24:28] Speaker 04: And in your evidence that you're trying to put in, [00:24:30] Speaker 04: relates to generally whether there is a problem if you put an inlet in a passage compartment. [00:24:37] Speaker 04: In the context of an IPR, they said that wasn't sufficiently related. [00:24:41] Speaker 04: But moreover, there were two other reasons that were given as well for denying that discovery. [00:24:47] Speaker 04: And they don't appeal to either of those reasons. [00:24:50] Speaker 04: And the board relied upon those. [00:24:52] Speaker 04: One of them was that it was too late. [00:24:54] Speaker 04: They had waited too long. [00:24:56] Speaker 04: And the second one was they had made no effort whatsoever. [00:24:59] Speaker 04: to show that they could not get this evidence by some other means. [00:25:02] Speaker 04: Now, they come in here and say, well, we can't get it by any other means. [00:25:06] Speaker 04: But they didn't tell the district court that. [00:25:08] Speaker 04: They didn't try to point out any other ways that they could have done it. [00:25:12] Speaker 04: They didn't say that they couldn't get it another way. [00:25:15] Speaker 04: So the reality is that the motion for additional discovery was denied for three reasons, two of which they don't even appeal. [00:25:23] Speaker 04: And it was a procedural reason. [00:25:24] Speaker 06: And it's an abuse of discretion standard. [00:25:30] Speaker 06: Yes. [00:25:32] Speaker 04: So I'll sit down unless you have any further questions of me. [00:25:37] Speaker 04: No, that's a breaded fresh air. [00:25:41] Speaker 05: Cool fresh air. [00:25:49] Speaker 05: Don't trip on that thing. [00:25:50] Speaker 00: I'll be careful, Your Honor. [00:25:53] Speaker 00: I want to make just a couple points here. [00:25:56] Speaker 00: The first is, I think my colleague said that our entire argument depended on this open to the sky rationale, the Sun's doll configuration. [00:26:06] Speaker 00: And what we actually said is that was one of several different motivations, independent motivations. [00:26:12] Speaker 00: If that was open to the sky, that was a motivation to move to the side. [00:26:17] Speaker 00: But that's a separate motivation from whether it's blocked. [00:26:20] Speaker 00: On this issue about cooling air, the other motivations were that, yeah, I think there were four. [00:26:34] Speaker 00: It was the blockage issue, it was the open to the sky issue, and then there was a noise issue as well. [00:26:39] Speaker 00: It's directing noise to the passenger as opposed to outside of the vehicle. [00:26:45] Speaker 01: You said there were four. [00:26:46] Speaker 00: Well, the forfeit we had raised was, I guess, a KSR type argument. [00:26:51] Speaker 06: But the noise issue depended on the thing being sticked up between the two people sitting there. [00:26:57] Speaker 00: Well, it depended on it being generally, our rationale was that it was in the passenger compartment, right near the passengers, in our view, shooting the noise straight up towards them as opposed to outside. [00:27:06] Speaker 06: The facts just proved that. [00:27:08] Speaker 00: And that's why we're not appealing that issue. [00:27:10] Speaker 06: So that rationale, goodbye. [00:27:12] Speaker 06: It went down with the first one. [00:27:14] Speaker 00: That's right. [00:27:14] Speaker 00: Well, yeah, it went down. [00:27:16] Speaker 00: We're only appealing the blockage. [00:27:17] Speaker 06: So you left with cool air, and what else? [00:27:19] Speaker 00: Cool air is what we're appealing here, Your Honor. [00:27:21] Speaker 00: And on that point, there is evidence on this cooler air on the side of the vehicle. [00:27:27] Speaker 00: I direct Your Honors to appendix 304 to 305, where Dr. Davis, our expert, says, a typical operating temperature is it is better to supply cool, fresh air rather than hot air. [00:27:41] Speaker 00: Thus, air inlets are often located so that they draw cool, fresh air from outside of the engine compartment. [00:27:47] Speaker 00: And that's the difference here. [00:27:48] Speaker 00: The inlet in Sun-Zel is near the engine compartment. [00:27:51] Speaker 00: So it's drawing hot air into those internal components as opposed to ambient air. [00:27:56] Speaker 06: We don't know where Suzuki is drawing it, right? [00:28:00] Speaker 00: Well, and I guess the point is Suzuki doesn't get there. [00:28:04] Speaker 00: So you need Brown to get to what Dr. Davis, our expert, is saying is that motivation. [00:28:10] Speaker 00: And I've got five seconds left, so I'll direct your honors to appendix at 5880, which is Dr. Davis's reply declaration paragraph 20, which again reiterates this point about the need to get cool air as opposed to air from the engine area. [00:28:27] Speaker 00: We'll look and see what he's saying. [00:28:29] Speaker 00: Thank you, Your Honors. [00:28:31] Speaker 00: This matter stands a minute.