[00:00:52] Speaker 02:
Next case is bed here LLC versus Fredman Brothers furniture company 2018 2170 Mr.. Roketti May it please the court this case is focused on a claim construction issue of the term pillow It's

[00:01:19] Speaker 03:
It's a situation here where we submit that the board applied the wrong claim construction standard.

[00:01:26] Speaker 03:
And when we go through the board's final written decision, we see consistently that the board went through the evidence trying to see if the definition or the usage of the pillow was excluding Namu's film material.

[00:01:41] Speaker 03:
And we submit that this court in N. Ray Smith and in N. Ray Power Integrations

[00:01:48] Speaker 03:
set out the proper standard.

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The court in those cases said the correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is not whether the specification prescribes or precludes some broad reading of the claim term.

[00:02:11] Speaker 03:
And that's exactly what the PTAB did here.

[00:02:15] Speaker 03:
They went through

[00:02:17] Speaker 03:
the intrinsic record, which they kind of mixed up at times.

[00:02:23] Speaker 03:
But they were looking for the 408 patent, the specification, to exclude out.

[00:02:29] Speaker 03:
from pillow, non-loose film.

[00:02:33] Speaker 03:
And that's not the correct approach.

[00:02:34] Speaker 03:
The correct approach would have been to try to understand what the plain and ordinary meaning of pillow is, and how that term's used in the specification.

[00:02:42] Speaker 01:
In a way, that's not far, perhaps, from what the board did, which is to say,

[00:02:48] Speaker 01:
It looked at the word pillow.

[00:02:51] Speaker 01:
It looked at the speck, said, eh, we're not really, we can't tell very much from the speck, except that the one specifically described embodiment, the interior item, has its own cover before you put it inside the outside cover.

[00:03:06] Speaker 01:
But it describes that in language that says in some embodiments.

[00:03:09] Speaker 01:
And so what we are going to actually do is look at

[00:03:14] Speaker 01:
what the evidence, extrinsic evidence, tells us about maybe not the plane, but at least an ordinary meaning.

[00:03:21] Speaker 01:
And we think that film material that's not loose, like a foam structure that you could sleep on, rest your head on anyway, without putting a cover if you care to, that that is one reasonable

[00:03:41] Speaker 03:
It's reasonable to say that that itself is a pillow even if it doesn't have a cloth on it and your honor I think you hit on a bunch of different points right one is The specification does say in some embodiments pillow 24 includes a cover 54 having a first pal But the board made very clear and this was a dispute at the board that that language wasn't broadening out pillow It didn't it wasn't suggesting some embodiments can have a pillow with a cover and some embodiments could have a pillow without a cover

[00:04:11] Speaker 03:
Rather, what the board said at appendix 13 through 14 is that the actual spec was amended for this very language.

[00:04:21] Speaker 03:
And it was trying to differentiate between a cover with one panel versus a cover with more than one panel.

[00:04:26] Speaker 03:
And the language that was amended out basically left the language with one panel.

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And this is on appendix 13 and 14.

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The court explained that it doesn't broaden pillow to be only film material.

[00:04:40] Speaker 03:
makes clear, maybe a but should have been there, but makes clear that applicant intended to broaden cover 54 to include only a single panel cover.

[00:04:50] Speaker 03:
So there's no discussion in the four-way patent specification of a pillow that doesn't have a cover.

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Every discussion is a pillow with a cover and film material.

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And so one of ordinary skill in the art would understand from that that we're talking about a very traditional pillow.

[00:05:06] Speaker 03:
Pillows include covers and film material within it.

[00:05:10] Speaker 03:
Now, if that was the only intrinsic evidence, that's the only intrinsic evidence the board recognized.

[00:05:14] Speaker 03:
But there was other intrinsic evidence that the board misclassified as extrinsic evidence.

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And this was prior art that was cited in the file history.

[00:05:23] Speaker 03:
I mean, Kumar, the Federal Circuit back in 2003, made this clear.

[00:05:28] Speaker 03:
That's intrinsic evidence.

[00:05:29] Speaker 03:
And that should have been considered as well.

[00:05:31] Speaker 01:
And here we have a- Was it not considered at all or just interpreted differently from the way that you- I think the answer to that is,

[00:05:39] Speaker 03:
Yes and yes.

[00:05:41] Speaker 03:
So when it comes to the 134 patent, I didn't realize that was a possibility.

[00:05:45] Speaker 01:
Right.

[00:05:46] Speaker 03:
Well, it was both.

[00:05:47] Speaker 03:
It was both.

[00:05:48] Speaker 03:
In one instance, the 134 patent was treated as extrinsic evidence, even though it's on the face of the patent.

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So it should have been treated as intrinsic evidence.

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And the 134 patent is actually a patent for the same inventor.

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And this same inventor in that description talks about pillows and that the pillow has a cover and film material consistently.

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and consistent with the 408 spec.

[00:06:12] Speaker 03:
The board did analyze that information, but in the wrong bucket.

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The board was considering it as extrinsic evidence.

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It talked about it after it talked about definitions.

[00:06:23] Speaker 03:
So that's one mistake.

[00:06:25] Speaker 03:
It didn't give it its proper weight.

[00:06:27] Speaker 03:
That's legal error.

[00:06:29] Speaker 03:
It should have been included in the intrinsic evidence.

[00:06:32] Speaker 03:
But the interesting part about that is what the board said.

[00:06:39] Speaker 01:
when it was going through.

[00:06:40] Speaker 01:
Just to be clear, since accepting your view, at least by assumption that this is part of intrinsic evidence and this is matter that we can consider on our own, so it doesn't really matter if the board

[00:06:54] Speaker 01:
misconsidered it.

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We need to consider it for its proper effect regardless.

[00:07:00] Speaker 03:
We would agree that it should be given its proper weight and put in the proper category of intrinsic evidence.

[00:07:07] Speaker 03:
But what the board did say about the 134 patent and other Beg Gear patents that were extrinsic, it said

[00:07:21] Speaker 03:
And this is, it's as it indicates that the pillow claimed in those patents, the 134 being one of them, requires fill material and a cover containing fill material.

[00:07:34] Speaker 03:
And this is important because it demonstrates that the board recognized what the 134 patent taught to one of our any skill in the art.

[00:07:42] Speaker 03:
But because the board was applying the wrong standard, it discarded this reference because it found it to be a non-limiting example of pillow.

[00:07:52] Speaker 03:
So because it used the word typically or usually in the specification, it said, that doesn't preclude it.

[00:07:58] Speaker 03:
And that's not the right analysis.

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It was supposed to be looking to see what one of our in skill in the art at the time this application was filed would have understood a pillow to be.

[00:08:06] Speaker 03:
And that's consistently in the 408 patent specification and the written description.

[00:08:12] Speaker 03:
would have been, as well as the 134 pen, would have been a pillow that included a cover and film material.

[00:08:18] Speaker 03:
But to go to your other point, Your Honor, the Frye reference, which is one of the references in the ground, is also intrinsic evidence in this case.

[00:08:28] Speaker 03:
And the Frye reference has really great language in explaining what a pillow is.

[00:08:34] Speaker 03:
And at appendix 805, it says,

[00:08:37] Speaker 03:
Bed pillows are usually constructed of a fabric covering and a filler of either synthetic fiberfill, down feathers, latex foam, or viscoelastic foam.

[00:08:48] Speaker 03:
Inside the cover creates a pillow.

[00:08:51] Speaker 03:
Creates a pillow.

[00:08:53] Speaker 03:
Fry is telling us what creates a pillow is when the foam is put inside the covering of it.

[00:09:01] Speaker 03:
Fry goes on to talk about the Pillow 100 is constructed

[00:09:04] Speaker 03:
by sewing two pieces of fabric together around the circumference of the fabric, allowing an opening for the filling, the resulting cover with filling material.

[00:09:15] Speaker 03:
So Frey, the very reference they're relying on is intrinsic evidence, and it makes clear a couple different things, that there's the pillow and the film material are two different things.

[00:09:27] Speaker 03:
And they're used exclusively and consistently as two different things.

[00:09:31] Speaker 03:
That a pillow is created by placing the film material inside the cover, and that foam is film material, not a pillow.

[00:09:40] Speaker 03:
Now, again, the board threw this reference in the extrinsic evidence bucket, and that was improper and incorrect.

[00:09:49] Speaker 03:
But I think what's more egregious here is that the board failed to analyze this piece of information.

[00:09:54] Speaker 03:
And that goes to the second part.

[00:09:56] Speaker 03:
your honor, of your question, which was here the board didn't analyze.

[00:10:02] Speaker 03:
It talked about our arguments about it, but it didn't analyze the Frey reference.

[00:10:06] Speaker 03:
It didn't analyze those statements.

[00:10:08] Speaker 03:
So not only did it not analyze it in the context of intrinsic evidence to determine what one of the greatest skill in the art would have understood a pillow to be, it didn't analyze it at all.

[00:10:19] Speaker 03:
Now, in its brief, Fredman Brothers at page 23 insinuates that the board would have discarded

[00:10:25] Speaker 03:
all these disclosures and fried for the same reasons as the 134 pattern.

[00:10:30] Speaker 03:
But the important part is the board never did that.

[00:10:34] Speaker 03:
The board didn't go through that analysis.

[00:10:35] Speaker 03:
So what we have is a record in which one of the most important pieces of intrinsic record was left unanalyzed.

[00:10:44] Speaker 03:
Now, when we look at what the board did rely on, it relied on a dictionary definition, a second definition in a reference in a dictionary that, or a reference submitted by Beggear, but a definition that neither party relied on, neither expert testified about.

[00:11:03] Speaker 03:
And there's no surrounding understanding of what one of Orny's skill in the art would have understood that definition to mean.

[00:11:11] Speaker 03:
And the definition only says, any pillow-shaped block or support.

[00:11:15] Speaker 03:
So as the court was going through this, what did the court say about this at Appendix 15?

[00:11:19] Speaker 03:
It says, we note that the only definition in the record that relates to fill material that is not loose is Exhibit 2003's Any Pillow, Shape, Block, or Support.

[00:11:29] Speaker 03:
And then the board comments that that, which is also consistent with petitioner's interpretation.

[00:11:34] Speaker 03:
But again, the board's going through all the evidence.

[00:11:37] Speaker 03:
There was other dictionary definitions.

[00:11:39] Speaker 03:
And they all required a cover in fill.

[00:11:42] Speaker 03:
But the board was looking.

[00:11:44] Speaker 03:
exclusively for non-lose film material to see if somehow pillows have excluded that from ever being considered.

[00:11:53] Speaker 03:
And that's just fundamentally the wrong approach.

[00:11:55] Speaker 03:
It's wrong as a matter of law.

[00:11:57] Speaker 03:
And it infected the entire analysis the board provided.

[00:12:02] Speaker 03:
Now, again, the board can consider extrinsic evidence.

[00:12:07] Speaker 03:
Absolutely.

[00:12:08] Speaker 03:
We don't object to that.

[00:12:09] Speaker 03:
But the board can't rely on it when it's inconsistent or contradicts the intrinsic record.

[00:12:14] Speaker 03:
And that's well settled.

[00:12:15] Speaker 03:
That's bedrock principle.

[00:12:17] Speaker 03:
And the Federal Circuit has made that clear over and over again.

[00:12:20] Speaker 03:
So when we look at how the board did this and how it infected the analysis, it infected how the board looked at the evidence.

[00:12:30] Speaker 03:
There was unfortunate mistakes about which evidence fell in which bucket.

[00:12:34] Speaker 03:
But it also leads to certain kind of absurd results, one being that the pillow

[00:12:40] Speaker 03:
The definition of pillow changes based on the film.

[00:12:43] Speaker 03:
And that's unusual, right?

[00:12:44] Speaker 03:
A pillow has a meaning to one of our own skill in the art.

[00:12:47] Speaker 03:
It's the components of it.

[00:12:49] Speaker 03:
And I think, your honor, your last point was about resting your head.

[00:12:54] Speaker 03:
That's the function of a pillow.

[00:12:56] Speaker 03:
Right?

[00:12:56] Speaker 03:
That's what we do with a pillow.

[00:12:58] Speaker 03:
But it's not what a pillow is.

[00:13:00] Speaker 03:
Right?

[00:13:00] Speaker 03:
And I think there was testimony for sure in the record about their friend and brother's expert said, well, a puppy could be a pillow because you could rest your head on a puppy.

[00:13:08] Speaker 03:
I'm not suggesting that's appropriate.

[00:13:10] Speaker 03:
You could rest your head on a rock.

[00:13:11] Speaker 03:
You could just rest your head on whatever.

[00:13:13] Speaker 03:
But that doesn't make it a pillow because it serves the function of something we can rest our head on.

[00:13:17] Speaker 03:
I can rest my head on my arm.

[00:13:19] Speaker 03:
That doesn't make my arm a pillow.

[00:13:22] Speaker 03:
A pillow had a well and established and understood meaning.

[00:13:26] Speaker 03:
The record, intrinsic record, makes it incredibly clear that it's a pillow that includes a cover and fill.

[00:13:32] Speaker 03:
The intrinsic record was clear.

[00:13:35] Speaker 03:
I don't believe extrinsic evidence needed to be resorted to.

[00:13:38] Speaker 03:
But even if it is, it's not permitted to contradict the intrinsic.

[00:13:44] Speaker 02:
Counsel, you're into your bottle time.

[00:13:45] Speaker 02:
And perhaps you ought to rest.

[00:13:48] Speaker 02:
And we'll hear from Mr. Mudd.

[00:14:07] Speaker 00:
May I please the court?

[00:14:09] Speaker 00:
Jason Mudd for Appellee Fredman Brothers Furniture.

[00:14:12] Speaker 00:
The board correctly found that claim 12 of the 408 patent would have been obvious over Frye in view of Shelby.

[00:14:18] Speaker 00:
The purported invention here was directed to a pillow cover having an opening in one panel that's covered by both a porous patch and a filter so as to allow for airflow while at the same time preventing the entry of contaminants such as dirt and oil.

[00:14:34] Speaker 00:
Now importantly, BedGear does not dispute that any of these purported inventive features and indeed that all the limitations of claim 12 are taught by Fry and View Shelby except for one claim term, pillow.

[00:14:49] Speaker 00:
And their argument for why it does not teach a pillow is based on an improper narrowing claim construction that seeks to limit the claim term pillow to being just a quote, standard pillow having at least its own fabric cover

[00:15:04] Speaker 00:
and fill material contained therein.

[00:15:07] Speaker 00:
Bedgear's proposed construction is telling because their own construction recites that the claimed pillow should be a standard pillow that has its own fabric cover.

[00:15:19] Speaker 00:
So its own construction tacitly admits that it's a standard pillow that would have its own fabric cover and that there could be other presumably non-standard pillows in Bedgear's view that would not have their own cover, such as solid memory foam.

[00:15:34] Speaker 00:
So it's very clear that Bedgear's construction is seeking to read in limitations into the claim language.

[00:15:42] Speaker 00:
Now importantly, the standard that's being applied here is the broadest reasonable interpretation.

[00:15:47] Speaker 00:
We're not applying Phillips because this IPR was handled before the Patent Office changed its rules to adopt the Phillips standard.

[00:15:56] Speaker 00:
Now importantly, the intrinsic evidence here does not support Bedgear's construction to seek to inject this requirement of

[00:16:04] Speaker 00:
a standard pillow that has its own cover.

[00:16:08] Speaker 00:
And importantly, as we've noted in the briefing, what this construction is doing, as the board noted, is it's trying to require the claim language, which already recites a pillow cover.

[00:16:17] Speaker 00:
It's trying to inject a requirement that there are two covers, even though the plain claim language only recites a single pillow cover.

[00:16:25] Speaker 00:
Now, as we noted in the briefing, BedGear could have expressly recited in the claims that the pillow comprises its own pillow cover.

[00:16:34] Speaker 00:
But they didn't do that.

[00:16:36] Speaker 00:
Bedgier could have acted as its own lexicographer.

[00:16:38] Speaker 00:
If the term pillow had such great importance to the invention, they could have defined the term pillow in saying it specifically is limited to a so-called standard pillow having its own cover.

[00:16:49] Speaker 00:
But Bedgier did not do that.

[00:16:51] Speaker 00:
Bedgier could have also, in describing the pillow in the specification, always described it as having its own cover.

[00:16:58] Speaker 00:
But it did not do that.

[00:17:00] Speaker 00:
Therefore, it's inappropriate to read in a limitation that's not present in the claim language.

[00:17:07] Speaker 00:
And importantly, even the specification itself doesn't describe the pillow as being a, quote, standard pillow or a conventional pillow.

[00:17:15] Speaker 00:
And as the board expressly found, Bedgear's proposed construction was not consistent with the specification.

[00:17:22] Speaker 00:
So Bedgear had primarily relied on figure three of the 408 patent and the description of it, which refers to a pillow 24 having a cover 54.

[00:17:34] Speaker 00:
It's essentially this cover 54 that Bedgear is trying to read into the claim language.

[00:17:40] Speaker 00:
But importantly, what the specification says at column five, lines 49 to 51, is that in some embodiments, pillow 24 includes a cover 54.

[00:17:51] Speaker 00:
So it's saying, in some embodiments, it has this cover.

[00:17:55] Speaker 00:
Now, importantly, that sentence continues.

[00:17:57] Speaker 00:
It says, in some embodiments, pillow 24 includes a cover 54 having a first panel 56.

[00:18:04] Speaker 00:
Now, in the proceedings below, Bedgear had argued, well, that could mean it's just saying, in some embodiments, the cover 54 has a first panel, so as to suggest that there are other embodiments where the cover 54 has two panels.

[00:18:21] Speaker 00:
And importantly, the board addressed this issue.

[00:18:25] Speaker 00:
And I don't believe Bedgear is continuing to urge this issue.

[00:18:28] Speaker 00:
But what the board noted is that during prosecution, the specification was actually expressly amended to exclude any embodiment where cover 54 has two panels.

[00:18:41] Speaker 00:
So the only cover 54 that's ever described in the patent is a cover 54 that has one panel.

[00:18:48] Speaker 00:
So that makes clear then.

[00:18:51] Speaker 00:
that that sentence means that in some embodiments, pillow 24 includes a cover 54.

[00:18:57] Speaker 00:
There is no embodiments where you have a two-paneled cover 54.

[00:19:01] Speaker 00:
It's just one cover 54 that's described.

[00:19:05] Speaker 00:
And it makes clear that that's present in some embodiments.

[00:19:09] Speaker 00:
And importantly, the board went on to note in its decision that even pillow 24 itself is just an example in the patent.

[00:19:17] Speaker 00:
So the patent states at column three, lines eight to nine,

[00:19:21] Speaker 00:
a pillow such as, for example, pillow 24 of system 10.

[00:19:26] Speaker 00:
So even pillow 24, even if we assumed that every embodiment of pillow 24 was described as having its own cover 54, even if that were the case, it would still be improper to limit the claim pillow to that because the patent makes clear that pillow 24 itself is just exemplary.

[00:19:45] Speaker 00:
It's just an embodiment.

[00:19:47] Speaker 00:
And the board expressly noted that in its decision.

[00:19:50] Speaker 00:
And importantly, Bedgars' expert testified that the 408 patent can be used with any pillow.

[00:19:57] Speaker 00:
It's not restricted.

[00:19:59] Speaker 00:
And he agreed that Pillow 24 is just an example that's described in the specification.

[00:20:04] Speaker 00:
And it's black-letter law that it's improper to try to read limitations in from embodiments in the specification into the claim language.

[00:20:14] Speaker 00:
Now turning next to the 134 patent in the Frye reference.

[00:20:18] Speaker 00:
Council for Bed Gear has argued that the board committed error here by bucketing this supposedly very important evidence as being extrinsic evidence rather than intrinsic evidence.

[00:20:33] Speaker 00:
Importantly, there's nothing in the board's decision that suggests it was somehow discounting the 134 patent or the Frye reference as being extrinsic evidence and therefore we're giving it less weight.

[00:20:45] Speaker 00:
They didn't do that.

[00:20:46] Speaker 00:
All BedGear can say is that, well, the headings list the 134 Patent and Frye references under a subheading that's titled Extrinsic Evidence.

[00:20:56] Speaker 00:
That's all that happened.

[00:20:58] Speaker 00:
There's nothing in the decision that says we discount this evidence.

[00:21:03] Speaker 00:
In any event, it doesn't matter because the board found that the 134 Patent and Frye actually don't support BedGear's construction.

[00:21:11] Speaker 00:
Because what the 134 Patent specification says is that

[00:21:15] Speaker 00:
The use of a pillow made typically of a fabric cover stuffed with compliant soft material is known in the prior art.

[00:21:22] Speaker 00:
So the 134 patent itself admits that it is typically a pillow.

[00:21:29] Speaker 00:
It has a fabric cover with film material, which demonstrates that the same inventor in a piece of intrinsic evidence, a cited reference, had said that typically pillows have their own fabric cover, not that they always have them or require them.

[00:21:44] Speaker 00:
The same thing applies for the Frey reference.

[00:21:47] Speaker 00:
The Frey reference states that pillows are usually constructed of a fabric covering and fill material.

[00:21:54] Speaker 00:
Again, they usually are.

[00:21:56] Speaker 00:
They are not always constructed in this manner, and they're not required to be constructed in that manner.

[00:22:03] Speaker 00:
Even if the board somehow misclassified the 134 pattern fry as extrinsic evidence, which we don't believe they did.

[00:22:11] Speaker 00:
But even if they did, they didn't purport to discount it.

[00:22:15] Speaker 00:
And this evidence actually demonstrates that bedgear's construction is improper.

[00:22:20] Speaker 00:
So if anything, if we were to classify it as intrinsic evidence, it elevates the importance of this evidence, which demonstrates that bedgear's construction is improper.

[00:22:33] Speaker 00:
Next, the board thoroughly weighed and considered the party's extrinsic evidence.

[00:22:38] Speaker 00:
And as we noted in the briefing, this weighing of evidence by the board is entitled to deference.

[00:22:43] Speaker 00:
As this court confirmed in the SAS opinion applying the U.S.

[00:22:46] Speaker 00:
Supreme Court's Teba decision, the board's weighing of extrinsic evidence and claim construction is reviewed for substantial evidence.

[00:22:54] Speaker 00:
So here, this isn't an opportunity on appeal for Bedgear to go in and ask his court to reweigh the extrinsic evidence.

[00:23:01] Speaker 00:
The board here has weighed that, and there is certainly more than reasonable evidence that allowed the board to reach its conclusion with regard to the extrinsic evidence.

[00:23:11] Speaker 00:
Starting first with the dictionary definitions.

[00:23:14] Speaker 00:
Now, Bedgear has raised issue with the fact that

[00:23:18] Speaker 00:
a piece of evidence that they themselves submitted, a dictionary definition which included a definition of any pillow-shaped block or support, they take issue with the board relying on a piece of evidence that they themselves submitted.

[00:23:33] Speaker 00:
There's nothing improper about doing that.

[00:23:35] Speaker 00:
They certainly invited the board to consider that definition because they provided it to the board.

[00:23:41] Speaker 00:
Whether Bedgear argued it or not is irrelevant.

[00:23:43] Speaker 00:
It's evidence they provided.

[00:23:45] Speaker 00:
And importantly, even amongst these definitions,

[00:23:48] Speaker 00:
We again see the word usually, right?

[00:23:50] Speaker 00:
Usually a fabric cover is stuffed with soft material for a pillow.

[00:23:56] Speaker 00:
Usually.

[00:23:57] Speaker 00:
And importantly, the expert testimony here, including the testimony of Bedgear's own expert, I think is some of the most persuasive evidence the board considered.

[00:24:10] Speaker 00:
Bedgear's expert incredibly testified that solid memory foam in a cover

[00:24:16] Speaker 00:
would be understood to be a pillow.

[00:24:18] Speaker 00:
But when you remove that cover, it all of a sudden ceases to be a pillow because you've taken the cover off.

[00:24:25] Speaker 00:
And when asked why is the memory foam no longer a pillow when you take the cover off, he testified, well, it can absorb moisture and contaminants, and this would cause deficiencies.

[00:24:36] Speaker 00:
Well, that may make it a dirty pillow, but it's still a pillow at that point.

[00:24:42] Speaker 00:
And as the board expressly found, the record

[00:24:46] Speaker 00:
quote, does not indicate why solid memory foam, even if it can absorb undesirable substances, fails to benefit from the advantages of cover 12 of the four-way patent or be a block for support.

[00:24:59] Speaker 00:
And as we noted in the briefing, indeed, a piece of solid memory foam that did not have its own fabric cover would benefit even more so from the invention, right?

[00:25:11] Speaker 00:
A cover

[00:25:12] Speaker 00:
that has a opening for air to go in and out, but has a porous patch and a filter to keep contaminants from going in, a piece of memory foam that doesn't have its own cover, benefits even more.

[00:25:28] Speaker 00:
If the memory foam already has its own intrinsic cover inside of the pillow cover, in other words, two covers,

[00:25:34] Speaker 00:
it really needs the invention much less because it already has its own intrinsic cover.

[00:25:41] Speaker 00:
So as the board noted, the fact that a piece of solid memory foam can become dirty without its own cover does not in any way demonstrate that it is not a pillow.

[00:25:53] Speaker 00:
As the board noted, the key aspects of the 408 were preventing staining while also allowing cooling and allowing the pillow to be removed.

[00:26:03] Speaker 00:
And the board concluded, this is at appendix 12 to 13, that a pillow comprised of solid foam would enjoy all of those benefits.

[00:26:14] Speaker 00:
So there's no reason why that cannot be considered to be a pillow.

[00:26:24] Speaker 00:
Next, I don't believe Bedgier really addressed it in its opening argument, but in the briefing, Bedgier had argued that there was

[00:26:32] Speaker 00:
potentially that the board's decision was not expressly clear that it was finding that Frye taught solid foam.

[00:26:42] Speaker 00:
The board's decision is sufficiently clear on that point because it concludes that its claim construction encompasses solid foam material and it proceeds to then find that Frye teaches that solid foam material.

[00:26:58] Speaker 00:
Frye discloses

[00:27:00] Speaker 00:
the use of viscoelastic foam, also known as memory foam, and latex foam.

[00:27:05] Speaker 00:
And as our expert opined, this forms a pillow that deforms when a person lays their head on it and rebounds when the person removes their head.

[00:27:12] Speaker 00:
So the board necessarily expressly found that the Frye reference taught solid foam fill material and satisfied the board's construction.

[00:27:27] Speaker 00:
There are a couple of other arguments that Bedgars Council didn't raise on appeal.

[00:27:31] Speaker 00:
I don't see a need to address.

[00:27:33] Speaker 00:
There was an argument about an APA violation that supposedly they were not on sufficient notice regarding the board's ultimate construction of the term pillow.

[00:27:43] Speaker 00:
We've laid this out in detail in the briefing.

[00:27:46] Speaker 00:
The construction of the term pillow was an issue all the way back in the patent owner's preliminary response in the institution decision.

[00:27:53] Speaker 00:
The board made it clear.

[00:27:55] Speaker 00:
that the claimed pillow did not require its own cover.

[00:27:59] Speaker 00:
This was heavily litigated throughout the course of the proceeding.

[00:28:01] Speaker 00:
Bedgear had made arguments about loose fill material, not itself constituting a pillow.

[00:28:08] Speaker 00:
So Bedgear was fully on notice that the construction of the term pillow was at issue and that there was a dispute over whether there was a dispute regarding solid versus loose fill material.

[00:28:24] Speaker 00:
And finally, I'll just note very briefly, there was a reference to an Appointments Clause constitutional challenge.

[00:28:33] Speaker 00:
We contend Bedgier waived this argument by, one, not presenting it below in the IPR proceedings, and second, by not providing any substantive argument in its opening brief and instead just purporting to preserve such a challenge without actually raising it.

[00:28:49] Speaker 00:
And that is waived pursuant to this Court's opinion in SmithKline, Beecham.

[00:28:55] Speaker 00:
There was a couple points that appellants council had raised One was with regard to in Ray Smith and all I can say about in Ray Smith is that there the specification had repeatedly distinguished between a body and a mandrel and Therefore it was unreasonable to construe a body as encompassing a mandrel There's no such repeated use of the term pillow in the specification that would make this case analogous to in Ray Smith Council your red light is on I think we have your argument

[00:29:25] Speaker 00:
Thank you, your honor.

[00:29:26] Speaker 00:
We request that the board's decision be affirmed.

[00:29:28] Speaker 02:
All right, I understand.

[00:29:29] Speaker 02:
Mr. McHattie has a little rebuttal time.

[00:29:35] Speaker 03:
Thank you, your honor.

[00:29:37] Speaker 03:
Starting with the Frye reference having solid phone.

[00:29:42] Speaker 03:
And we disagree with that.

[00:29:43] Speaker 03:
And I think I'm sure the panels looked at the decision.

[00:29:46] Speaker 03:
And it's clear that the board did not make that finding, but just restated its claim construction holding.

[00:29:53] Speaker 03:
But if it did, then that means that Frye disclosed the solid foam as film material and not a pillow.

[00:30:01] Speaker 03:
So the very reference, the examiner saying has a pillow, is relying on something that the reference calls something completely different, film material.

[00:30:11] Speaker 03:
Consistently calls it film material.

[00:30:14] Speaker 03:
We believe that's an issue and an error in the decision.

[00:30:17] Speaker 03:
But to be honest, the decision doesn't go that far.

[00:30:20] Speaker 03:
It never says Frye has a solid block of foam.

[00:30:24] Speaker 03:
But now, going back to everything we've heard, we never heard what's the plain and ordinary meaning.

[00:30:30] Speaker 03:
We heard usually, typically, these are somehow now bad words.

[00:30:33] Speaker 03:
They're actually words that evidence.

[00:30:35] Speaker 03:
what one of our any skill in the art would understand the term to me.

[00:30:38] Speaker 03:
Usually, a pillow includes fabric, cover, and film.

[00:30:41] Speaker 03:
That's the plain and ordinary meaning.

[00:30:43] Speaker 03:
There's a district court from the Northern District of California that we cited to.

[00:30:47] Speaker 03:
The Federal Circuit hasn't addressed this issue.

[00:30:49] Speaker 03:
But we submit that when those words are used, they are evidence of what the plain and ordinary meaning is.

[00:30:55] Speaker 03:
And they shouldn't be used against a patent owner as non-limiting examples.

[00:31:01] Speaker 03:
And this really goes to what Inray Smith

[00:31:04] Speaker 03:
The court said an enracement that said, following the logic that counsel is proposing and the board employed, any description short of an express definition or a disclaimer in the specification would result in an adoption of the broadest possible interpretation of a claim term.

[00:31:22] Speaker 03:
It's a broadest reasonable interpretation in line with the specification.

[00:31:26] Speaker 03:
And we submit that was not done here.

[00:31:28] Speaker 03:
We got the broadest possible.

[00:31:29] Speaker 03:
We didn't get the broadest reasonable.

[00:31:32] Speaker 03:
And I think just the last point

[00:31:35] Speaker 03:
you know, to this issue is just that council says that a pillow doesn't have to include, right, because there's no express disclaimer or limiting out non-loose filler.

[00:31:48] Speaker 03:
But by that same logic, then pillow means nothing.

[00:31:51] Speaker 03:
Because in the same way it doesn't say it can't, it has to have a cover, it must have a, right, it's defined to have a cover, always has a cover, it doesn't say anything about the fill material either.

[00:32:03] Speaker 03:
Right?

[00:32:03] Speaker 03:
It just lays out how it's using the term.

[00:32:06] Speaker 03:
And that's how one of owner and skill in the art would understand how the term is being used by the inventor.

[00:32:12] Speaker 03:
We appreciate your time, Your Honor.

[00:32:13] Speaker 02:
Thank you, Counsel.

[00:32:15] Speaker 02:
I could say we will sleep on it.

[00:32:19] Speaker 02:
We'll consider your arguments when the case is submitted.