[00:00:00] Speaker 02: Gammon Plus. [00:01:19] Speaker 02: We're ready whenever you are. [00:01:20] Speaker 03: Thank you, Your Honor. [00:01:23] Speaker 03: May it please the Court, the designs that are claimed in the two patents in suit here are claimed broadly, to put it mildly. [00:01:29] Speaker 03: Each patent claims a design associated with a gravity feed dispenser, a rack for holding and dispensing cans. [00:01:35] Speaker 03: And what the patents claim is some kind of solid surface area, sometimes called a label area, that's positioned somewhere over a can that's been dispensed from the rack and is lying on its side. [00:01:45] Speaker 03: And one of the patents, the 646, adds a stop at either end of the dispensed can. [00:01:51] Speaker 03: The board's determination that those broadly claimed designs are patentable raises two issues that go to the heart of the inquiry into design patent obviousness. [00:02:00] Speaker 03: The first, what constitutes a primary reference, the starting point for the obviousness inquiry in a design patent? [00:02:06] Speaker 03: And the second, how do you construe design patent claims when part of the claim design is shown in broken lines? [00:02:13] Speaker 03: The case presents a third issue regarding the nexus that a patentee must show between asserted secondary considerations of non-obviousness and the supposedly novel features of a claimed invention. [00:02:24] Speaker 03: I can take each of those issues in turn or as the court prefers. [00:02:27] Speaker 02: Well, let me ask you, I mean, and I'll ask your friend this too, because there's, at least for me, some confusion. [00:02:33] Speaker 02: And this is about what we call dotted lines or the lines versus a straight line. [00:02:41] Speaker 02: Because the language at the MPP in our cases seem to suggest it can't be used on its unclaimed subject matter if you have those dashed lines. [00:02:53] Speaker 02: On the other hand, it allows it to be used as some sort of boundary. [00:02:59] Speaker 02: And I guess I'm having a hard time differentiating between what the actual differentiation is in this case. [00:03:05] Speaker 02: Sure. [00:03:06] Speaker 03: So what the broken lines can be used for is environmental context. [00:03:11] Speaker 03: That is, the broken lines teach the person reading the patent, teach the public that the claim design of a solid surface over a can lying on its side appears in the context of a gravity feed dispenser. [00:03:24] Speaker 03: But there's nothing about the gravity feed dispenser that's claimed. [00:03:27] Speaker 03: So if you look, for example, just at pages 10 and 11 of our opening brief, so page 10 has the figure of the 646 patent, page 11 has the actual claimed subject matter. [00:03:40] Speaker 03: of the 646 patent. [00:03:43] Speaker 03: If you look at the claim to subject matter, what you see shown in solid lines are the dimensions of a can, which we know is the dimensions of a Campbell Soup can, not something unique that the patentee invented, with stops in front of it. [00:03:54] Speaker 03: And then there's some solid surface above it. [00:03:57] Speaker 03: We know it's solid because of the shading lines, but we don't know anything about the height, width, or overall shape of that surface. [00:04:04] Speaker 02: So the board, where's the board's claim to instruction and its opinion? [00:04:08] Speaker 02: Can you identify that red line? [00:04:09] Speaker 02: I can, Your Honor. [00:04:33] Speaker 03: Okay 67 your honor So the board construed so again if you look at page 67 the board's construction and compare that with our page 11 which shows just the claimed subject matter or page 10 which shows the [00:05:02] Speaker 03: the entire drawing. [00:05:03] Speaker 03: The board used the broken lines to determine that, for example, the solid surface is taller than it is wide. [00:05:13] Speaker 03: It used the broken lines to determine that the solid surface is positioned a particular distance above the can lying on its side. [00:05:21] Speaker 03: It used the broken lines to determine that the solid surface is roughly as wide as the can lying on its side. [00:05:27] Speaker 00: The broken lines don't change the design. [00:05:31] Speaker 03: So the design, and we're now focusing on what's taught by that solid surface area, Your Honor. [00:05:36] Speaker 03: All we know is that there's a solid surface that includes what's shown there in shading. [00:05:40] Speaker 03: The entirety of that solid surface area could be wider than it is tall. [00:05:45] Speaker 03: It could be a circle. [00:05:46] Speaker 03: It could be a triangle. [00:05:47] Speaker 03: It could be an octagon. [00:05:48] Speaker 03: There are no boundaries defined around the solid surface, and we don't know how far it extends down towards the can, because there's no bottom boundary. [00:05:55] Speaker 00: You don't need to. [00:05:56] Speaker 00: The design patent is the design. [00:05:59] Speaker 03: The design patent is what's claimed as a design, but you have to take out from what's claimed the broken lines. [00:06:04] Speaker 00: It's the design what's claimed, but for the broken lines, which are not included in the design, there it is. [00:06:14] Speaker 00: What is there to construe? [00:06:15] Speaker 03: So the broken lines, and again now focusing specifically on the solid surface, what is sometimes called the label area, all of the top, bottom, left and right side are all shown in broken lines, which means that there's no [00:06:28] Speaker 03: claimed boundary. [00:06:30] Speaker 03: Contrast that with the cam. [00:06:32] Speaker 03: So you can see a definition of the height and diameter of the cam. [00:06:37] Speaker 03: Whereas for that solid surface, it can, according to the design as shown, it can extend in either direction. [00:06:45] Speaker 03: It can stand up. [00:06:46] Speaker 03: It can extend down. [00:06:47] Speaker 03: It can be a circle. [00:06:48] Speaker 02: Can I see if I understand your argument? [00:06:50] Speaker 02: Yes, you are. [00:06:51] Speaker 02: This is really a real question. [00:06:54] Speaker 02: It seems to me you're making two arguments. [00:06:57] Speaker 02: with regard to what the board did. [00:06:59] Speaker 02: One is that they required, and forgetting primary reference, whatever, that there be a can shown. [00:07:05] Speaker 02: And you argue, no, no, no, you didn't need a can. [00:07:07] Speaker 02: Assuming we reject that and we think you do need a can, is there a second argument you're making, at least with respect to the claim construction? [00:07:17] Speaker 02: Because we don't know what the board did, because they also relied on the dimensions and how this labeling all fits together. [00:07:26] Speaker 02: And there was error in how the board construed the impact of the dashed lines. [00:07:33] Speaker 02: So I know you're arguing the can doesn't [00:07:37] Speaker 02: shouldn't do it for you. [00:07:38] Speaker 02: But assuming we reject that, do you still have an argument left with respect to the board's claim construction? [00:07:43] Speaker 03: So there's two different issues there, Your Honor. [00:07:44] Speaker 03: The question of whether a can has to be shown goes towards the issue of what constitutes a primary reference. [00:07:50] Speaker 03: Where the board got its claim construction wrong is it used the broken lines to infer some proportionality between the solid surface that's disposed over the can. [00:07:59] Speaker 03: So for example, it used the broken lines to presume that the solid surface sits above the can at roughly the height of the can. [00:08:08] Speaker 03: But that's not claimed. [00:08:10] Speaker 03: So I'm not sure if that answers your honor's question. [00:08:12] Speaker 03: So the error in claim construction. [00:08:15] Speaker 02: So where would that take you? [00:08:17] Speaker 02: If we disagree with you on the CAN stuff, and we think the CAN needed to have been there, then aren't you left only with SAM, whatever that other reference is? [00:08:27] Speaker 02: SAMWAYS. [00:08:27] Speaker 02: SAMWAYS is the primary reference. [00:08:29] Speaker 02: Is that where it gets you? [00:08:30] Speaker 02: I'm not seeing how this dimension thing and proportionality, which I think I understand at least your argument on, where it gets you in this case. [00:08:39] Speaker 03: So proportionality, it probably helps to start with the primary reference. [00:08:42] Speaker 03: Because the proportionality issue, for example, [00:08:46] Speaker 03: has a little bit less to do with the Lins reference than with the Samways reference. [00:08:49] Speaker 03: One of the things the board said was, OK, well, Samways shows embodiments that have a can. [00:08:53] Speaker 03: But in Samways, the label area, the surface area, has a different proportionality than what's claimed. [00:08:59] Speaker 03: So that's where the proportionality error in claim construction comes into play. [00:09:07] Speaker 03: So the issue with the broken lines, and then perhaps I can shift to the primary reference, [00:09:10] Speaker 03: is we have clear black letter law. [00:09:12] Speaker 03: Broken lines are not to be considered when you're construing the boundaries, the scope of the claim. [00:09:17] Speaker 03: It's in the MPEP. [00:09:18] Speaker 03: And both of these patents have an expressed disclaimer confirming that. [00:09:22] Speaker 03: So the public is on notice. [00:09:23] Speaker 03: What the public has been told is that the broken lines are there to show environmental context, to show that this is a design that's used in gravity feed dispensers. [00:09:32] Speaker 03: But you're not supposed to read the broken lines to define claim scope. [00:09:36] Speaker 02: But the word bought, I'm sorry. [00:09:38] Speaker 02: The word boundary is used frequently when bored and when our cases have touched. [00:09:43] Speaker 02: So what's the difference? [00:09:44] Speaker 02: If it constitutes a boundary, then I don't know what the distinction is between being a boundary and being a claimed feature. [00:09:52] Speaker 03: So as I understand it, Your Honor, again, looking, for example, at what we've shown on page 11, the claim design would have to include at least what's shown there as a surface area. [00:10:02] Speaker 03: But it's not limited to that. [00:10:06] Speaker 03: So as long as that part of the surface area is in there, it can extend to either side. [00:10:10] Speaker 04: Yeah, I don't know if that's right. [00:10:12] Speaker 04: When I look at MPEP 1503.02, number three, applicant may choose to define the bounds of a claim design with broken lines when the boundary does not exist in reality in the article embodying the design. [00:10:28] Speaker 04: It will be understood that the claim design extends to the boundary but does not include the boundary. [00:10:34] Speaker 04: So I haven't actually seen you raise any argument or case to the contrary of that. [00:10:43] Speaker 03: So if you look at page 29 of our opening brief, Your Honor, where I think we're citing that same section, that it's unclaimed subject matter may be shown in broken lines for the purpose of illustrating the environment in which the article embodying the design is used. [00:10:57] Speaker 03: Unclaimed subject matter must be described as forming no part of the claim design or a specified embodiment thereof. [00:11:03] Speaker 03: And again, the use of broken lines indicates that the environmental structure depicted in broken lines forms no part of the design and is not to indicate the relevant importance of parts of the design. [00:11:15] Speaker 04: You said page 29. [00:11:16] Speaker 03: Page 29, your honor. [00:11:17] Speaker 03: Yes. [00:11:18] Speaker 04: 29 of your brief. [00:11:27] Speaker 04: I guess I'm still struggling with how, on appendix page 66, what the board colored in blue, or what is colored in blue, at least in the portion that we have in front of us, isn't the claim design. [00:11:42] Speaker 04: You're saying that's not the claim design. [00:11:44] Speaker 04: The board got it wrong to the extent that they found that that was the claim design. [00:11:49] Speaker 03: So not quite, Your Honor. [00:11:50] Speaker 03: So the blue does show what's claimed. [00:11:52] Speaker 03: I think what we show on page 11 of our brief more clearly separates out [00:11:56] Speaker 03: more clearly takes the broken lines out of what's being shown so you can focus on just what's actually claimed. [00:12:04] Speaker 03: What's shown on page 11 reflects the blue that's shown on Appendix 66. [00:12:08] Speaker 03: It just takes the broken lines out so you can focus specifically on what's claimed. [00:12:12] Speaker 00: So are you telling us that the presence of the broken lines in the drawing invalidate the claim? [00:12:18] Speaker 03: No, Your Honor. [00:12:19] Speaker 03: What we're saying is that no, the broken lines are there to show environmental context. [00:12:24] Speaker 03: Again, the broken lines show that this [00:12:26] Speaker 03: solid surface over a can, that that's a design that's used in the field of gravity feed dispensers. [00:12:32] Speaker 00: The board says it's proper to ignore the broken lines. [00:12:35] Speaker 03: To, I'm sorry, to ignore the broken lines. [00:12:37] Speaker 03: So the broken lines provide environmental context. [00:12:41] Speaker 03: They show you the, how the design, where the design is going to work. [00:12:44] Speaker 00: That's a good statement in the abstract. [00:12:45] Speaker 00: When you look at the picture, it shows [00:12:49] Speaker 00: where the broken lines are. [00:12:50] Speaker 00: Plus the board accepts the description that they form no part of the claim design. [00:12:57] Speaker 00: And where is that wrong? [00:12:59] Speaker 03: So when you look at the board's actual construction on page 67, Your Honor. [00:13:03] Speaker 03: That was the board's construction. [00:13:05] Speaker 03: Right. [00:13:06] Speaker 03: The board's construction reads into, reads from the broken lines proportionality that's not actually reflected in the actual claimed design. [00:13:16] Speaker 03: So, for example, again, the board determined that the label area is taller than... Well, that's not an issue in validity, proportionality. [00:13:24] Speaker 00: Is it? [00:13:24] Speaker 00: Are you saying that there are references which, if proportionality were changed, would be more relevant, would be invalidating? [00:13:32] Speaker 03: So, Your Honor, the board considered that proportionality as a distinguishing feature in Samways, for example. [00:13:38] Speaker 03: The board decided that the proportionality of a Samways dispenser was different [00:13:42] Speaker 03: than how the board had construed the proportionality of the claim designs. [00:13:46] Speaker 03: So if you take proportionality out, and we argue that proportionality should not have been part of that claim construction, that the claim designs do not claim a particular relative width of label area to can, a particular relative height of label area to can, a particular shape of label area, if you take all of that out, then the board's distinguishing of Samways has to be reviewed. [00:14:09] Speaker 04: But only if we take all that. [00:14:11] Speaker 04: Only if we disregard the board's conclusion that a spatial relationship is part of the claim design. [00:14:18] Speaker 03: For Samways, correct, Your Honor. [00:14:19] Speaker 03: So for Lins, the issue of Lins being a primary reference is whether a designer of ordinary skill who designs gravity feed dispensers would understand Lins to teach. [00:14:29] Speaker 04: What support do you have for this idea that if you take away the broken lines and have to exclude them, [00:14:37] Speaker 04: that that portion could go on forever in any particular direction. [00:14:41] Speaker 04: I just don't find any support in the MPEP or in any cases for that idea. [00:14:46] Speaker 03: Because that's how the MPEP says to treat broken lines. [00:14:49] Speaker 03: So for example, here, Your Honor, if the patentee had wanted to claim any kind of proportionality or dimensionality of the label area or have it be a claim a rectangle, for example, as a label area, they should have shown it in solid lines. [00:15:01] Speaker 04: They chose not to. [00:15:02] Speaker 04: No, but the MPEP section three [00:15:04] Speaker 04: 1503.02, number three, but you omitted from page 29, says the two most common use of broken lines are to disclose the environment related to the claim design and to define the bounds of the claim. [00:15:18] Speaker 04: Structure that is not part of the claim design but is considered necessary to show the environment in which the design is associated may also be represented in drawings by broken lines. [00:15:31] Speaker 04: This includes any portion of an article in which the design is embodied [00:15:34] Speaker 04: or applied to that's not considered part of the claim design. [00:15:38] Speaker 04: So I guess when I read that, I understand the broken lines can also define the bounds of the claim. [00:15:46] Speaker 04: That shaded part in between, it can define the boundaries of what that shaded part is. [00:15:52] Speaker 04: So my misunderstanding that MPEP section, because that's how the PTO understood its own MPEP section too. [00:15:59] Speaker 04: So how am I misunderstanding that? [00:16:00] Speaker 03: So the broken lines tell you that this isn't a gravity feed dispenser. [00:16:03] Speaker 03: We couldn't take that design and apply it. [00:16:06] Speaker 03: Yes, I know. [00:16:06] Speaker 04: But I think the broken lines in this context, where you have a shaded region that's clearly part of the design, provide the boundaries of the claimed area. [00:16:15] Speaker 04: And if I think that, then I think they've got the spatial relations right. [00:16:18] Speaker 04: And I think that that's a fair reading of that MPEP section that I just read. [00:16:22] Speaker 04: And given that it's their own MPEP, and they think so too, [00:16:27] Speaker 04: I don't think you have me on this. [00:16:28] Speaker 03: And I understand, Your Honor. [00:16:29] Speaker 03: So again, but that's our take of what the MPEP says. [00:16:32] Speaker 03: It's a public notice requirement. [00:16:33] Speaker 03: The public looking at a claim design is going to look at it and understand the broken lines form no part of claim scope. [00:16:39] Speaker 03: So they're going to look at what's actually claimed in something other than broken lines, which is shown here in solid lines and in shade. [00:16:46] Speaker 04: But there's no dispute the shaded part is part of what's claimed. [00:16:48] Speaker 04: You don't dispute that. [00:16:50] Speaker 04: I'm sorry, the shaded lines? [00:16:52] Speaker 04: The shaded part, the label part, the part where the label goes. [00:16:56] Speaker 04: You don't dispute that that is part of the claim design. [00:16:59] Speaker 03: Correct, because there are shading lines there to show some solid surface. [00:17:02] Speaker 03: We agree that there is a solid surface claim there, and you can tell it's a solid surface. [00:17:06] Speaker 04: But your view of design patent is because the broken lines are there, you have no idea what the dimension, shape, or extent of that shaded part is. [00:17:14] Speaker 04: And that would be a pretty kind of [00:17:17] Speaker 04: That would create a pretty amorphous rule for design patents. [00:17:21] Speaker 03: Actually, Your Honor, we think it creates a pretty bright line rule that we have. [00:17:24] Speaker 03: It just imposes on the patentee the burden of if they want that label area to have some defined scope, show it in solid lines. [00:17:33] Speaker 02: OK, we're way beyond our time when we stress and we buttle. [00:17:45] Speaker 01: Please record that my name is Drew Tarasoff. [00:17:48] Speaker 01: I represent Gammon Plus, the patent owner and appellee in this case. [00:17:55] Speaker 01: Following what this discussion was going about, the scope of the design patent claim, it's pretty clear that appellants are confusing the law of design patents and utility patents. [00:18:05] Speaker 01: Design patent claims are not comprising claims. [00:18:08] Speaker 01: The definition of a design patent claim scope is that an ordinary observer will look at that [00:18:15] Speaker 02: But can I ask you, I guess going back to just the discussion we've been having for the last 10 minutes. [00:18:21] Speaker 02: In this instance, what would have been the difference? [00:18:25] Speaker 02: Dash lines have to have some difference than a straight line with no dashes. [00:18:31] Speaker 02: What would we be doing differently if your client had claimed straight unbroken lines versus the broken lines? [00:18:38] Speaker 02: What is the significance of that for your invention? [00:18:41] Speaker 01: My sense is that it's not a major difference in the design context because you're really defining the area. [00:18:48] Speaker 01: But there might be some quality to the boundary. [00:18:51] Speaker 01: Let's say the boundary was a convex or concave boundary or line. [00:18:55] Speaker 01: And the other area where I think the dotted lines are used, if you look at the bottom of the can in that... No, but I'm talking about this thing. [00:19:03] Speaker 02: We've had most of our discussion not about the can, but about this display. [00:19:06] Speaker 01: Well, it's an analogous situation because the lower bottom of the can [00:19:10] Speaker 01: The can itself is a cylindrical object, but it only exposes the part of the design, which is that sort of silhouette. [00:19:17] Speaker 01: And there's a dotted line around the stops and around the bottom of the can there. [00:19:24] Speaker 01: I guess if you weren't having a line, it would suggest you were cutting it. [00:19:27] Speaker 04: That dotted line along the bottom is not part of your claim design. [00:19:30] Speaker 01: No, it's not. [00:19:32] Speaker 01: It just means that shape though, the shape of the can with that sort of cut out silhouette or apparent is the design. [00:19:39] Speaker 04: I'm kind of confused when you say the shape of the can is the design. [00:19:42] Speaker 04: Your claim is to a dispenser. [00:19:45] Speaker 04: You don't claim the can, but are you claiming the can that's within the dispenser? [00:19:50] Speaker 01: Yes, the can is part of the design, yes. [00:19:52] Speaker 04: Does that mean if it's empty and if I sell it when it's empty, it's not infringing? [00:19:57] Speaker 01: That's right. [00:19:57] Speaker 01: It doesn't infringe until you actually contribute to an infringement product because the rack is usually configured to... So the only infringement that goes here, if we were to move this design patent into an infringement case, [00:20:10] Speaker 02: would be Campbell sells it to this other person, but all the time empty. [00:20:16] Speaker 01: Or uses it in a store to sell soup. [00:20:20] Speaker 02: No. [00:20:20] Speaker 02: So the only infringement happens when it gets to Kroger's or Giant or Safeway. [00:20:25] Speaker 02: And they take what's been sold by Campbell and the other person you've named in this case. [00:20:31] Speaker 01: There might be some other, like, [00:20:32] Speaker 01: principles of infringement like almost all the parts are applied or something like that. [00:20:37] Speaker 02: Well, if the basis for your getting this patent is the fact that there's a can there, that's what differentiates it from others. [00:20:42] Speaker 01: That's correct. [00:20:43] Speaker 01: It's a way of selling a Campbell's soup can that's shaped like a can. [00:20:45] Speaker 02: So the only infringement happens when the can is actually in the display thing. [00:20:50] Speaker 01: That's correct, when it's used in the display. [00:20:52] Speaker 02: Can you go back to my question, though I'm not sure I understood your answer, which is if this patent [00:20:59] Speaker 02: had not used the dotted lines on the display and had just used straight lines, what would be the difference in impact for that pattern as opposed to your pattern which has dotted lines? [00:21:11] Speaker 01: I would say there would not be a big significant difference because as a mathematician I'm kind of used to thinking of these things. [00:21:19] Speaker 01: You can have a square which is all the points inside of a square and it will include the perimeter which is [00:21:24] Speaker 01: Really just a line of zero dimensions and so that the lot I don't think that the perimeter line is so important that the road important thing is the the subtended area and It's I think it's incorrect that one thing council said if you were to extend this sign I'm sorry. [00:21:41] Speaker 02: What is I don't know what that term means subtended area. [00:21:44] Speaker 01: I'm sorry Well, I can closed the closed area inside of this boundary the boundary itself is not claimed, but the area inside of it is clean [00:21:52] Speaker 02: Well, if that's true, so you're saying the difference would be if you have non-dashed lines, you'd be claiming the lines as well as the interior. [00:22:06] Speaker 02: So the difference with the dashed lines means you're claiming the interior but not the debt. [00:22:11] Speaker 02: I'm sorry. [00:22:12] Speaker 01: It would be pretty similar ultimately. [00:22:15] Speaker 02: Well, I'm not looking for similarities. [00:22:16] Speaker 02: I see the similarities, but I'm looking for the differences. [00:22:19] Speaker 01: I can't think of a situation where there would be an issue except, as I'm saying, if there were a quality to the boundary, which was a little bit more than just a line, like the outer edge going back instead of the inward edge coming out. [00:22:33] Speaker 01: There could be some slight differential. [00:22:36] Speaker 04: Will you please look at A66, which is the board's opinion. [00:22:40] Speaker 04: And I assume you agree that the blue part is the claimed part. [00:22:47] Speaker 04: A66. [00:22:56] Speaker 01: A66. [00:23:14] Speaker 04: The blue part is the part the board says is the claim design, correct? [00:23:17] Speaker 01: That's correct. [00:23:18] Speaker 04: Okay. [00:23:19] Speaker 04: Now I'd like you to look at Lintz, which is on page A697, and I'd like you to keep them right next to each other. [00:23:26] Speaker 04: A697 in the appendix. [00:23:29] Speaker 04: This is one of the potentially primary references. [00:23:40] Speaker 04: One thing that baffles me about your briefs by the way is why you all don't put pictures of these things side-by-side Because that's what's an issue here And I mean I understand why you might not want to because then they might cause me to say gosh those things look similar But a 697 figure one Am I right in understanding that that is the prior art that the board was looking at to ascertain whether it can be the right reference That's that's correct. [00:24:08] Speaker 01: That's the priority [00:24:09] Speaker 04: So when I look at these two things side by side, I'm sort of baffled as to how they aren't exactly the same thing. [00:24:16] Speaker 04: If you don't have them, I'll share mine with you. [00:24:18] Speaker 04: So this is the claim, and this is the prior art. [00:24:24] Speaker 04: And so, Holly, do you have it? [00:24:29] Speaker 04: So it's just for me, I'm sort of baffled. [00:24:32] Speaker 04: What exactly, given that all the dotted line stuff on page A66 isn't included, which includes the roller coaster looking way in which it extends back beyond the stops, none of that's included as part of the design. [00:24:47] Speaker 01: That's correct. [00:24:48] Speaker 01: No, it's only the can and the stops. [00:24:50] Speaker 04: What the heck is the difference between A697 and A66? [00:24:54] Speaker 04: These aren't just substantially the same, they look exactly the same to me. [00:24:58] Speaker 01: Well, one thing is that the sign is narrower than the length of the can. [00:25:02] Speaker 01: The sign on our device is as wide as the rack, just almost as wide as the rack. [00:25:09] Speaker 04: I'm sorry, the sign is narrower than the length of the can. [00:25:16] Speaker 04: How do you know? [00:25:16] Speaker 04: There's no can in this one. [00:25:18] Speaker 04: How do you know the sign is narrow? [00:25:21] Speaker 04: How do you know about lints and whether it's wider or narrower than a can? [00:25:27] Speaker 01: Well, that was the problem. [00:25:29] Speaker 01: There was no can defined for lints. [00:25:31] Speaker 01: In fact, it doesn't even say that there's a display for cans. [00:25:39] Speaker 01: Well, actually, the expert for Campbell's was the examiner who issued this patent, or one of the examiners who issued this patent, lints. [00:25:45] Speaker 01: And so we feel he had some contamination of his thinking. [00:25:48] Speaker 01: If you try to figure out how to do this, he actually conceded that... Wait, whose thinking was contaminated? [00:25:54] Speaker 02: I don't understand. [00:25:55] Speaker 01: The expert. [00:25:56] Speaker 01: The primary examiner on Lentz is James Gandy. [00:25:59] Speaker 01: And he was also the expert who interpreted it as a reference for the... Hey, Grant? [00:26:04] Speaker 02: Okay. [00:26:06] Speaker 01: The problem is that the device here is really just basically a fanciful device. [00:26:14] Speaker 01: They never figured out how to work it. [00:26:16] Speaker 01: the size of the can or what it would look like in this device is not clear. [00:26:21] Speaker 01: We asked the expert... What do you mean what it would look like? [00:26:25] Speaker 04: That it would be right there at the bottom? [00:26:30] Speaker 01: There would be a red bull can, but it would be in a different position. [00:26:33] Speaker 01: It wouldn't be as far forward. [00:26:35] Speaker 01: The actual distinctions here are quite a few, but one is that the sign is dimensions which are kind of analogous to the shape and height and width of the [00:26:45] Speaker 01: The camel suit can, which is lying sideways there. [00:26:49] Speaker 01: If you can see, this is a smaller sign. [00:26:52] Speaker 01: It's like not quite as tall. [00:26:54] Speaker 01: There's an aesthetic difference here. [00:26:56] Speaker 01: The can below it is farther forward than the can at least would be. [00:26:59] Speaker 04: So you think that it can't be the primary reference at all? [00:27:03] Speaker 04: Can't even be the primary reference? [00:27:05] Speaker 04: Can't be the reference used in the obvious analysis [00:27:09] Speaker 04: Because the sign, despite the fact that I'm struggling to see any difference at all between these things, you're telling me that the height of this one is not quite as high as the other one. [00:27:19] Speaker 01: I think you're being guided by looking at our pattern first. [00:27:22] Speaker 01: If you look at this for the first time... I'm going back and forth between the two. [00:27:25] Speaker 01: I don't think you'd immediately assume that the can is going to be a Campbell Soup can, or where it would wind up, by the way, it's somewhat... [00:27:33] Speaker 02: You're not claiming a canvas soup can. [00:27:35] Speaker 02: You're just claiming any kind of a can. [00:27:37] Speaker 02: It could be a soda can, too, right? [00:27:39] Speaker 01: No, actually, we're talking about the actual dimensions of this can and the associated height and location of the sign above it. [00:27:46] Speaker 04: No, I'm sorry, but that actually is not correct. [00:27:49] Speaker 04: That is completely not correct. [00:27:51] Speaker 04: I buy yams for Thanksgiving. [00:27:54] Speaker 04: I buy them in a really big can, big can of yams. [00:27:58] Speaker 04: There's no scale given in a design patent. [00:28:04] Speaker 04: design could be for those giant yam cams. [00:28:06] Speaker 04: It's just that everything would have to proportionally be equally sized. [00:28:10] Speaker 01: Oh, no question, but that has to be proportional. [00:28:13] Speaker 01: Yes, but this is not for camel-toothed cams. [00:28:16] Speaker 01: If it was a tuna fish can, it wouldn't come under this patent, right? [00:28:19] Speaker 02: any cylindrical can would come under this patent if it was very narrow and you're standing at a tuna fish can on its side why wouldn't come under this patent because it doesn't look like this combination of things the thing is we're in the design patent world it has nothing to do with you but we don't have any dimensions for this right the only dimensions the board refers to is the relationship between this display thing and you know i've got issues with this [00:28:47] Speaker 02: the contours of this display thing, since it's unclaimed, and the can, right? [00:28:54] Speaker 02: Or whatever it is, the object that's in there, right? [00:28:58] Speaker 01: Well, the thing is that the appearance of this can is, in our picture, is different from a tuna fish can, or a Red Bull can, or a Fringles potato chips can. [00:29:09] Speaker 01: you get it in the utility context on the switch sides around what you wanted to see if you think it was going to be a lot of things here but my hand can looks exactly like that although if it's the same shape it is that we can also can but mentions of camels and can you know [00:29:24] Speaker 01: The same, in other words, is it four and a half inches by two and a half? [00:29:28] Speaker 02: Well, I don't know. [00:29:28] Speaker 02: The board, in its opinion, had a bunch of cans. [00:29:31] Speaker 02: And soup comes in different jumbo sizes here. [00:29:34] Speaker 02: And I thought some of the diagrams, the pictures, the photos the board had in its opinion, were different size cans. [00:29:42] Speaker 01: There are two Campbell soup cans that my client made for Rax 4. [00:29:49] Speaker 01: They're basically one is scaled up, and they have one that's condensed, and the other one is ready to serve. [00:29:53] Speaker 04: The thing that's confusing me is that the design patent claims it is for a display assembly, a display. [00:30:02] Speaker 04: The patent itself says, it doesn't say it's claiming cans. [00:30:07] Speaker 04: You're not claiming a can. [00:30:10] Speaker 04: It's a display of a can. [00:30:11] Speaker 04: It's a gravity feed dispenser. [00:30:12] Speaker 04: That's what you're claiming, a gravity feed dispenser, a dispenser [00:30:16] Speaker 04: doesn't necessarily include the objects which are being dispensed from it. [00:30:21] Speaker 04: So I'm just completely confused about how the can is part of your design. [00:30:26] Speaker 04: I mean, you're claiming a gravity feed dispenser, a dispenser. [00:30:30] Speaker 04: That's like when, OK, so suppose somebody covers, you know, we get to a lot of these design patents on bottles, like say Fantastic, or 409, one of these spray bottles. [00:30:39] Speaker 04: The shape of the design, they're not claiming the fluid inside the design. [00:30:44] Speaker 04: They're claiming the bottle. [00:30:46] Speaker 04: So I don't understand. [00:30:47] Speaker 04: You're claiming the dispenser. [00:30:49] Speaker 04: I don't know why the fact that Linz doesn't show the can in its picture means it can't be a primary reference. [00:30:57] Speaker 04: It's clearly a dispenser for cans, just like yours. [00:30:59] Speaker 04: There's no other, no person of skill in any art could look at this thing and think it's for anything other than being a dispenser of cans. [00:31:08] Speaker 04: I don't understand. [00:31:09] Speaker 01: Well, you could, I think, include that. [00:31:12] Speaker 01: Why? [00:31:12] Speaker 01: What else could they put in there? [00:31:14] Speaker 01: Colo paper? [00:31:14] Speaker 01: The question is, what size can are you going to put in there? [00:31:17] Speaker 01: If it's a tuna fish can, it wouldn't look like artisan. [00:31:20] Speaker 02: But look at A27 of the board opinion. [00:31:22] Speaker 02: They're not looking at the regular size, what I would think. [00:31:25] Speaker 02: They've got what I would think of the Campbell's soup can on the left. [00:31:29] Speaker 02: And then you've got these very large cans that are the jumbo size on the other side. [00:31:36] Speaker 02: So right? [00:31:37] Speaker 02: Isn't it contemplated to at least? [00:31:40] Speaker 01: I think they're roughly scaled up, just a larger can, like five by three. [00:31:45] Speaker 02: It's got the label chunky. [00:31:47] Speaker 02: I think some of those come in bigger. [00:31:49] Speaker 02: So you think the cans have to be the size, a certain size? [00:31:54] Speaker 02: No, do they have to be a certain size? [00:31:56] Speaker 01: No, not a certain size. [00:31:57] Speaker 02: Oh, so you're saying the can could be any size? [00:32:00] Speaker 01: Well, the same proportions. [00:32:01] Speaker 02: Proportions to what? [00:32:05] Speaker 01: Same proportions of height to radius of the cylinder of the can. [00:32:11] Speaker 01: Why? [00:32:11] Speaker 04: That's the can. [00:32:12] Speaker 04: It's not the display. [00:32:14] Speaker 04: You are claiming a display. [00:32:17] Speaker 01: we're going to display it with a can in it. [00:32:19] Speaker 01: That's how we want to present this invention. [00:32:23] Speaker 02: I guess I'm not clear on what the proportion. [00:32:25] Speaker 02: You're talking about the display, the stuff that the board talked about, about how the display can only have a proportionate, has to be proportionately close to the can. [00:32:37] Speaker 01: Let's say you have a 50 gallon drum that looks like a Campbell's suit can. [00:32:41] Speaker 01: You could make a big [00:32:42] Speaker 01: a big rack with a big sign which would be much larger than that and it would come under this design because the proportions of the can and the stops and the sign which would be immense. [00:32:55] Speaker 02: So it would cover any size of a can as long as the display stuff on top of it was [00:33:03] Speaker 02: the width was equivalent to the can? [00:33:07] Speaker 02: Is that a yes to my question? [00:33:10] Speaker 02: Yes, yes. [00:33:11] Speaker 00: This is a question of infringement. [00:33:14] Speaker 00: The board wasn't deciding infringement. [00:33:16] Speaker 00: They were deciding patentability, validity of the design. [00:33:20] Speaker 00: I see that their opinion of obviously various points of scope were argued. [00:33:28] Speaker 00: But I must say, I do have difficulty understanding how that relates to patentability of the design. [00:33:36] Speaker 00: There may be issues of scope that would arise in an infringement action. [00:33:43] Speaker 00: But did the board undertake to even to speculate? [00:33:49] Speaker 00: Well, yes, Your Honor. [00:33:50] Speaker 01: Did the board figure out the scope of the claim and included the standard restrictions that you get from In re Owens, everything [00:33:57] Speaker 01: You can claim an area within a boundary, and that claims the area within the boundary. [00:34:03] Speaker 01: And that area has its shape and size and relative position and all those things, which the board did consider and include in its analysis. [00:34:15] Speaker 00: But as a matter of differences from the prior art, or as a matter of venturing into issues that were not before the board? [00:34:24] Speaker 01: Well, this is the problem here. [00:34:27] Speaker 01: This is nothing. [00:34:28] Speaker 01: Here's our design. [00:34:30] Speaker 01: And we put Linz in this continuum. [00:34:32] Speaker 01: Linz comes in here. [00:34:33] Speaker 01: And the board said, it doesn't come close enough because it doesn't have a can at all. [00:34:40] Speaker 01: And you can't tell what size the can would be. [00:34:43] Speaker 01: And the expert said, look, we don't know what size. [00:34:45] Speaker 01: It's virtually impossible to tell what size this can is going to be. [00:34:49] Speaker 01: So you don't know if it's a Red Bull can or a tuna fish can inside. [00:34:55] Speaker 04: When you say it's virtually impossible to decide what side the can is, that's not right because it has to function in the system. [00:35:02] Speaker 04: So maybe there can be some variation in can size [00:35:08] Speaker 04: But it still has to work in the dispenser. [00:35:10] Speaker 04: You can't have a can that's twice as wide as the dispenser is. [00:35:13] Speaker 04: Absolutely. [00:35:14] Speaker 01: And to fit in here, it has to fit between this bar going across here and this ledge underneath it. [00:35:19] Speaker 01: And it's so narrow. [00:35:21] Speaker 04: To the extent that your expert said you can't tell what the dimensions of the can could be. [00:35:25] Speaker 01: No, it's Campbell's expert who said that. [00:35:27] Speaker 04: Whoever's expert. [00:35:27] Speaker 04: That makes no sense. [00:35:29] Speaker 04: You can't tell. [00:35:30] Speaker 04: It has to be bounded to some extent by the structure of the device, but... Well, you can tell that it should be about as wide as around. [00:35:39] Speaker 04: What I was struggling with is I don't understand why, since you've claimed a dispenser, you have not claimed a can. [00:35:44] Speaker 04: I mean, I know you're saying we've claimed a can, but I'm just completely baffled by how you claimed a can, a design to a can within a dispenser. [00:35:53] Speaker 04: I just don't understand that. [00:35:56] Speaker 04: I mean, we don't get that many design patent cases. [00:35:59] Speaker 04: Maybe I just don't understand design patent law. [00:36:01] Speaker 02: It's a very weird area. [00:36:03] Speaker 02: Can I just, you said, and maybe you misspoke, but what I wrote down, one of your answers to Judge Newman was talking about your patent. [00:36:11] Speaker 02: You're saying we claim the area within the boundary. [00:36:17] Speaker 02: I am very confused about this claimed unclaimed for dotted lines, but I think [00:36:24] Speaker 02: The board said, or I think someone has said, an unclaimed boundary forms no part of the claim design. [00:36:31] Speaker 02: Is that a correct statement, that the unclaimed boundary forms no part of the claim design? [00:36:36] Speaker 02: And if so, how can you be claiming an area? [00:36:40] Speaker 01: Because you're talking about an area which is inside of that boundary. [00:36:43] Speaker 01: Let's say you have a picture on the wall, a frame around it. [00:36:47] Speaker 01: You say, I'm not claiming the frame. [00:36:49] Speaker 01: I'm not claiming the frame. [00:36:50] Speaker 01: I'm just claiming the picture of the same idea. [00:36:54] Speaker 01: It's almost a mathematical concept. [00:36:58] Speaker 01: I think it's the odd thing. [00:36:59] Speaker 01: All right. [00:37:01] Speaker 02: We're way beyond our time, but you have the final thought. [00:37:03] Speaker 01: I just want to alert the court to another decision on the SAS issue here, which came down. [00:37:08] Speaker 01: And that is that there is a case, while in pharmaceuticals, 914F1366, which held a waiver of the SAS defects in a decision. [00:37:21] Speaker 04: Yeah, but why do you think they waived it? [00:37:23] Speaker 04: They erased it in the blue brief. [00:37:25] Speaker 01: Well, in this case, they waited six months to raise it in our argument. [00:37:30] Speaker 04: No, they raised it in the blue brief. [00:37:32] Speaker 04: They didn't wait six months. [00:37:33] Speaker 01: Well, the timeline is that this decision came down the end of March, I think. [00:37:39] Speaker 01: And then about April 24 was the SAS decision. [00:37:44] Speaker 01: They could have requested reconsideration by April 28 or maybe an after. [00:37:49] Speaker 01: Instead of doing that, they waived. [00:37:51] Speaker 02: Is that what the Mylan case says? [00:37:53] Speaker 02: That if you don't ask for reconsideration, you just appeal it here, you've waived? [00:37:59] Speaker 01: It says that if you wait six months, in this case, so four and a half months, but there were so many actions taken inconsistent with referring it back to the board and really just creating a deletory situation, they filed a nose appeal. [00:38:13] Speaker 01: And during the period of the nose appeal, they could have made a motion to remand, which has been granted in many cases. [00:38:18] Speaker 01: They didn't make a motion to remand. [00:38:20] Speaker 01: They waited until October, which is a substantial time later. [00:38:23] Speaker 02: Was that when the blue brief was filed? [00:38:25] Speaker 01: That's when the appeal brief was filed, yeah. [00:38:41] Speaker 02: Well, he went way over, so we'll give you a few more minutes, only if you need it. [00:38:44] Speaker 03: Thank you, Your Honor. [00:38:45] Speaker 03: I'll nevertheless try to keep it brief. [00:38:47] Speaker 03: Judge Moore, if you wanted to see the 646 patent and LINZ side by side, that's on page 35 of our blue brief. [00:38:54] Speaker 03: So you gave it to me after all. [00:38:55] Speaker 03: We did, Your Honor. [00:38:57] Speaker 03: The illustration there shows how LINZ would look. [00:39:00] Speaker 03: Oh, yeah. [00:39:01] Speaker 04: I think the problem, though, is you didn't put it side by side with the PTO's seat. [00:39:07] Speaker 04: I am favorably disposed to you, not necessarily going to decide your way. [00:39:11] Speaker 04: But even when you put it side by side with what the PTO claimed, you only put it side by side with what you want us to accept as a changed claim construction. [00:39:20] Speaker 04: But for me, I'm struggling with, because I think the PTO's claim construction is just fine. [00:39:27] Speaker 04: So I don't have a problem with the spatial relations thing. [00:39:29] Speaker 04: So for me, I'm instead now looking at, but did they get it right when they refused to look at length? [00:39:34] Speaker 03: Even with their claim construction, in that case, you could look at page 43 of our brief. [00:39:38] Speaker 03: We actually have there an overlay of lens over that same illustration. [00:39:43] Speaker 03: We were looking at before with the, with the claimed area shown in blue. [00:39:48] Speaker 03: Briefly, and again, I think this is a point, Judge Moore, that you were going over with counsel. [00:39:53] Speaker 03: Our experts certainly did not say it's almost impossible to tell what size can goes in there. [00:39:57] Speaker 03: We corrected that mischaracterization of the record at pages 14 to 16 of our reply brief. [00:40:03] Speaker 04: What is this whole thing? [00:40:04] Speaker 04: What am I missing? [00:40:05] Speaker 04: How in the design patent for a display device does your showing the can become [00:40:13] Speaker 04: the art that gets you over the prior art. [00:40:16] Speaker 04: Linz didn't show the can, you do. [00:40:17] Speaker 04: Well, Linz clearly uses a can. [00:40:18] Speaker 04: It has to use a can. [00:40:20] Speaker 04: It's absurd to think there's no can being used in that display. [00:40:23] Speaker 04: But this isn't a patent, although I guess technically it's to what is in the picture. [00:40:28] Speaker 04: But the patent purports to be a display. [00:40:31] Speaker 04: How come that can makes all the difference? [00:40:33] Speaker 04: I'm just baffled. [00:40:35] Speaker 04: Maybe I don't understand design patent law. [00:40:37] Speaker 04: I'm just struggled with how the thing inside the product they're claiming is [00:40:43] Speaker 03: So we're with you on that, Your Honor. [00:40:45] Speaker 03: So I think what is helpful here is to step back a bit, because I think where the board went wrong in this primary reference analysis is it applied an overly rigid, unduly narrow, and restrictive notion of that test, which is not what the test is for. [00:41:00] Speaker 03: So if you go back and you look at In rey Rosen or In rey Borden or the Jennings case, the point there, the reason that we have this primary reference test, is that the court has found that [00:41:14] Speaker 03: What you can't do is find obviousness of a design patent based on selecting each design characteristic feature from a different piece of prior art and just assembling them to come up with an article that's similar to the design. [00:41:25] Speaker 03: So that's in Ray Borden, and it runs up through MRC Innovations. [00:41:31] Speaker 03: But basically, this primary reference test, it's a common sense test. [00:41:35] Speaker 03: It's a tool against hindsight. [00:41:37] Speaker 03: So what the court said in cases like Rosen and Jennings is, look, you have to start with something. [00:41:42] Speaker 03: You have to have a fair starting point, a reference that's a fair starting point from which you decide whether the interchange of design characteristics is fair. [00:41:51] Speaker 04: Yeah, like for me, I certainly don't think it's hindsight. [00:41:53] Speaker 04: Oh, we're going to put a cannon lens. [00:41:56] Speaker 04: Now I get it. [00:41:57] Speaker 04: Of course you're putting a cannon lens. [00:41:59] Speaker 04: There's just no question there was always a cannon lens. [00:42:01] Speaker 03: Exactly, Your Honor. [00:42:02] Speaker 03: So that's certainly our point on lens, which is that a designer of ordinary skill would certainly understand lens. [00:42:08] Speaker 03: to show a dispenser. [00:42:10] Speaker 04: That's the whole point of the thing. [00:42:11] Speaker 03: Exactly, Your Honor. [00:42:13] Speaker 03: And Samways, similarly, I'll just touch on that and then I'll sit down. [00:42:16] Speaker 03: Samways, again, is a reference when you read Samways as a whole, which we're required to do. [00:42:21] Speaker 04: Samways teaches dispensers... So if the can doesn't do it for me, I mean, what about just the size of the label being slightly different? [00:42:30] Speaker 04: I mean, they're both curved, they're both right there. [00:42:33] Speaker 04: What about the [00:42:34] Speaker 04: Is there anything about the label? [00:42:35] Speaker 03: Your Honor, the proportionality things that we take issue with in the claim construction really don't matter for Linz for the reasons that you're saying. [00:42:43] Speaker 03: Linz even has that same proportionality. [00:42:45] Speaker 03: So for Samways, I think I would just close on saying, again, you need to apply the primary reference test as a common sense test. [00:42:53] Speaker 03: It's a tool to help the court guard against Highland. [00:42:55] Speaker 02: OK, I want you to, though, make a brief reply to the argument about SAS that your friend raised. [00:43:00] Speaker 02: Sure. [00:43:00] Speaker 03: About SAS, Your Honor, this court held in the Google case as recently as March that a motion to remand is not the only way to get relief under SAS. [00:43:09] Speaker 03: We timely raised it in our field brief here. [00:43:10] Speaker 03: We were not required to seek reconsideration at the board level before doing that. [00:43:15] Speaker 02: Thank you. [00:43:15] Speaker 02: Take both sides. [00:43:17] Speaker 02: You're not going anywhere, I guess. [00:43:19] Speaker 02: No, Your Honor.