[00:00:29] Speaker 01: The next argued case is number 18, 1995, the Ray Cobbler. [00:00:34] Speaker 01: Mr. Selinger. [00:00:42] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:00:46] Speaker 03: The director's statement of issues unfairly frames the dispute as whether an ordinary artisan would have found it obvious to use two seals with a plastic trash bag. [00:00:56] Speaker 03: That statement of issues at page one. [00:01:00] Speaker 03: That unfair framework also permeated the patent office analysis, resulting in harmful error throughout. [00:01:10] Speaker 03: The linchpin of the board's error relates to figure eight of Meyer and what a person of ordinary skill in the art would have understood its unlabeled dashed line to be. [00:01:23] Speaker 03: Mr. Cobbler's affidavit established that the unlabeled dashed line of figure eight [00:01:28] Speaker 03: was a drawing artifact that was unintentionally left in the drawing. [00:01:34] Speaker 03: By way of contrast, the board began from the very high-level observation that figures 1, 2, and 8 consistently portray drawstrings 9, 10, and 11 within hollow duct 6. [00:01:52] Speaker 03: From this, the board jumped to the erroneous conclusion [00:01:56] Speaker 03: that there was support in the record for the examiner's statement that one could argue that the dotted bottom line of hem 6 is a seal. [00:02:08] Speaker 03: That conclusion, though, ignores the detailed teaching in Meyer that channel 6 is a continuous channel formed by channel 3 on one side and channel 4 on the backside. [00:02:24] Speaker 03: That teaching is [00:02:25] Speaker 03: at app 456, column three, lines four and six, and then app 457. [00:02:32] Speaker 00: Well, the case law is pretty old. [00:02:35] Speaker 00: Haven't we said that even unintended or unexplained drawings in a figure can be considered in terms of what one of skill in the art would have understood? [00:02:50] Speaker 03: Absolutely, Your Honor. [00:02:54] Speaker 03: If we didn't have Mr. Cobbler's affidavit in the record, then one could speculate about the meaning of that unlabeled dash line in Figure 8 to a person of ordinary skill. [00:03:08] Speaker 03: But Mr. Cobbler's affidavit makes it very clear and explains in detail why that unlabeled dash line is not a seal and why that position [00:03:24] Speaker 03: which the government has consistently taken is inconsistent with both the express teaching of the patent and how a person of ordinary skill in the art would have understood in looking at figure one where there was a cross section and then the seal line was a solid line across and then the mirror image in figure eight where there was a little cross section and then as one of five dotted lines [00:03:54] Speaker 03: the unlabeled line, because in that figure, actual CO5 is shown a bit lower down. [00:04:02] Speaker 00: Right, but you're talking about the inventor himself saying, I didn't really mean to put that line in there, but how is that necessarily indicative of what others would understand in looking at that figure? [00:04:14] Speaker 03: Well, no, actually, to be clear, Mr. Cobbler, who is the inventor of the application and issue here, [00:04:24] Speaker 03: filed an affidavit explaining in detail how he would understand, how a person of ordinary skill in the art would understand that dotted line to be. [00:04:40] Speaker 03: It's an A277 through 279. [00:04:43] Speaker 01: But other dotted lines were labeled as sealed. [00:04:47] Speaker 01: This just didn't happen to have a label or a number. [00:04:50] Speaker 03: No, no, Your Honor. [00:04:52] Speaker 03: The only dotted line that was labeled as a seal in figure eight is five. [00:04:58] Speaker 03: The other dotted lines, and there were a total of five, all had labels and all had discussions except for the one dashed line that continues on just below. [00:05:10] Speaker 03: And Mr. Cobbler's affidavit explains that in looking at [00:05:21] Speaker 03: the two figures that a person of ordinary skill in the art would treat that as a draftsman error, an unintended consequence that should have been removed, and that a person of ordinary skill in the art would not have taken that to be or to teach a seal. [00:05:43] Speaker 01: It makes sense. [00:05:44] Speaker 01: You wouldn't have a seal in the middle of the bag, but still it's in the inventor's control. [00:05:51] Speaker 01: Oh, there it is. [00:05:52] Speaker 03: And so in that case, the inventor, Mr. Meyer, left that in. [00:06:00] Speaker 03: And in the dispute now is whether a person of ordinary skill in the art would have taken that unlabeled dashed line to mean anything beyond a mistake. [00:06:16] Speaker 03: Mr. Cobbler explains [00:06:21] Speaker 03: why a person of ordinary skill in the art would not have. [00:06:26] Speaker 03: And furthermore, he points out the specification for both figures one and figure eight describe channels three and channels four together making a single channel nine around the back. [00:06:43] Speaker 03: And he also pointed to language in the independent claims that the actual quote is, [00:06:51] Speaker 03: quote, channels per end 3 comma 4 comma 9. [00:06:57] Speaker 03: And later on in the claim, it says at least one drawstring extending through the channels. [00:07:06] Speaker 03: The only way that happens is if 3 and 4 together define a continuous seal. [00:07:14] Speaker 03: If the dotted line creates a second seal, [00:07:21] Speaker 03: then three is no longer in communication with four, and it's contrary to the teachings of the patent. [00:07:28] Speaker 01: So why wasn't the dotted line just removed from the drawing? [00:07:36] Speaker 03: It's not ours, Your Honor. [00:07:37] Speaker 03: The dotted line is in a patent that was filed in 1988. [00:07:41] Speaker 03: This is the Meyer patent. [00:07:44] Speaker 03: The Meyer patent, yes, Your Honor. [00:07:46] Speaker 03: The dotted line is not in our patent. [00:07:48] Speaker 02: Do you attach any significance in figure 8 of Meyer, which is at 454 of the Joint Appendix, to the fact that the line to which we've been referring, which the parties are referred to as line X, starts out solid and then goes out in solid form and then becomes dotted? [00:08:09] Speaker 02: Do you attach any significance to it? [00:08:12] Speaker 02: I don't know. [00:08:12] Speaker 03: I'm just asking. [00:08:15] Speaker 03: Cobbler, in his affidavit, explained that. [00:08:19] Speaker 03: In figure one, if you look on the right-hand side of figure one, you'll see that little cross-section. [00:08:29] Speaker 03: But then solid line five continues all the way across from right to left. [00:08:37] Speaker 00: But the board actually [00:08:39] Speaker 00: said or agreed that there was ambiguity with respect to that. [00:08:43] Speaker 00: But then it turned around and said that Warren's talk, the invention. [00:08:49] Speaker 00: So what are we doing there? [00:08:52] Speaker 00: They said, even if that's ambiguous, we have this other piece of prior art. [00:08:59] Speaker 03: Yes. [00:08:59] Speaker 03: And there are two problems with Warren's. [00:09:04] Speaker 03: First, the director [00:09:08] Speaker 03: grudgingly concedes that the combination does not actually, warrants does not actually itself teach the structure that is actually claimed. [00:09:18] Speaker 00: But it teaches the overlap, right? [00:09:24] Speaker 03: What warrants shows, and I think the answer to your question, your honor, is only with hindsight. [00:09:30] Speaker 03: What warrants shows is a two section, two plastic bags, [00:09:38] Speaker 03: where as a manufacturing process, they're made from a single sheet. [00:09:45] Speaker 03: And so the front, you start at 23, you go up and you come down. [00:09:49] Speaker 03: And so the first, the top bag has two full sheets. [00:09:55] Speaker 03: The bottom of the top bag is seamed the way any bottom would be seamed, the way our bags are seamed, the way Meyer's bag is seamed. [00:10:06] Speaker 03: There's a seam at the bottom. [00:10:08] Speaker 03: That's different than a seam at the distal end. [00:10:12] Speaker 03: What the examiner and the board did is they generalized this to the abstract idea of two-ply, let's just put a patch on there. [00:10:24] Speaker 03: Therefore, it's obvious. [00:10:26] Speaker 03: That's not what the claim says. [00:10:28] Speaker 03: And I submit that the motivations to combine are also wrong. [00:10:34] Speaker 00: We've always said that [00:10:36] Speaker 00: you don't have to have the same purpose as the prior art if you're doing the same thing, if the structure is disclosed, right? [00:10:44] Speaker 03: That's correct. [00:10:44] Speaker 03: It doesn't have to be exactly the same. [00:10:47] Speaker 03: But absent hindsight, there is no motivation to make that combination. [00:10:55] Speaker 03: Going back to the Meyer prior art patent, Meyer in column two describes that when you're dealing with these sort of commodity products, [00:11:06] Speaker 03: You don't want, you want to be careful not to increase the cost of manufacturing using material, and you don't want to further complicate the manufacturing process. [00:11:20] Speaker 03: And I believe that's A455 at column two. [00:11:30] Speaker 03: So, can I ask you a question? [00:11:32] Speaker 02: Is Sellinger or Sellinger? [00:11:33] Speaker 02: Sellinger. [00:11:34] Speaker 02: Sellinger. [00:11:34] Speaker 02: Okay. [00:11:35] Speaker 02: My apologies. [00:11:36] Speaker 02: You referred early on in your presentation to the continuous channels, I think, correct? [00:11:48] Speaker 02: Use the word continuous channels. [00:11:50] Speaker 02: Now, but if you look at the pertinent portions of the specification in Myer, column three lines four through six on 456 of the appendix and column five lines [00:12:07] Speaker 02: 63 through 65 at 457. [00:12:10] Speaker 02: They don't say continuous channels, they just say channels three and four. [00:12:18] Speaker 02: Why could you not have a channel with a break in it? [00:12:23] Speaker 02: And you'd have the string or the drawstring of the chord in the upper part. [00:12:29] Speaker 02: You'd still have one channel three and the other side four, but it wouldn't be [00:12:36] Speaker 02: I would grant you continuous, it would be segmented, correct? [00:12:43] Speaker 03: In that hypothetical, your honor, and we had this conversation below, if that dotted line forms a seal, then what's referred to as three in figure eight is below the seal, below the top seal. [00:13:01] Speaker 03: And so what you would have is channel six on the front, [00:13:06] Speaker 03: communicating with channel four on the back when you quoted the language correctly, but Mr. Cobbler's affidavit says, a person of ordinary skill in the art, seeing that language and the claim language, that's the first limitation in each of the independent claims about channels three, four, and six, the government's position or the hypothetical you've [00:13:35] Speaker 03: presented eliminates channel three as having a drawstring in it because the drawstring is the drawstrings 18 the drawstrings 10 and 9 are above the the dotted line so I'm looking at [00:14:00] Speaker 02: I'm looking at appendix, I think you provide, and these are helpful, appendix 271. [00:14:05] Speaker 02: You have these drawings. [00:14:11] Speaker 02: And on the left-hand side, mark 13 is a drawing with line X left out. [00:14:20] Speaker 02: And you're saying that's the way it should be. [00:14:21] Speaker 02: And then you're saying, here's what we would have in the second drawing, mark 13, where the X. [00:14:30] Speaker 02: Couldn't you have the, I mean, why couldn't you have the channel in the area that's in that one marked up at six in the top? [00:14:39] Speaker 02: And three is encompassing all from 13 to five, but it's just been segmented at X. Because that's not what it shows, your honor. [00:14:50] Speaker 03: What this shows is if you put a seal at X on page 271, [00:15:00] Speaker 03: You have, you have separated channel three below from channel six above, and the figure immediately to the right shows that drawstrings nine and 10 pass through channel six. [00:15:18] Speaker 03: Segmenting it that way would remove channel three. [00:15:23] Speaker 01: You've got that bottom line as the bottom of the channel? [00:15:29] Speaker 03: I'm sorry, Your Honor. [00:15:30] Speaker 01: On appendix 271? [00:15:32] Speaker 03: Yes. [00:15:32] Speaker 01: Those pages. [00:15:34] Speaker 01: Okay, so you've labeled N270. [00:15:36] Speaker 01: Even though the dotted line is much lower on the bag, your position is that that's the bottom of the channel? [00:15:46] Speaker 03: Yes. [00:15:47] Speaker 03: And on the figure on 271 on the right, our position is the seal is the dotted line, which is labeled at five. [00:15:58] Speaker 03: While in figure one, the counterpart seal is the solid line labeled five. [00:16:09] Speaker 01: OK. [00:16:09] Speaker 01: Let's hear from the office. [00:16:18] Speaker 01: Mr. DeMarco. [00:16:19] Speaker 04: William DeMarco for the PTO. [00:16:22] Speaker 04: I guess, as Judge Schall highlighted and as public counsel highlighted, [00:16:28] Speaker 04: really what the disputes about is figure eight in the Meyer reference. [00:16:31] Speaker 04: And if we go back to look at figure eight again... Well, it's not... I mean... I'm sorry, Your Honor. [00:16:37] Speaker 00: The board conceded that figure eight was ambiguous or confusing, right? [00:16:42] Speaker 04: Correct, Your Honor. [00:16:43] Speaker 00: And so isn't the real debate, the real dispute over whether or not there was a sufficient finding of a motivation to combine Meyer and Werns? [00:16:55] Speaker 04: Right. [00:16:56] Speaker 04: Effectively looking at figure eight and you look at where there's no dispute that dashed line five is a seal There's no dispute about that. [00:17:04] Speaker 04: Everyone agrees. [00:17:05] Speaker 04: The only dispute is whether or not this other line Would an ordinary artisan be motivated to put a seal there if in fact it's not a seal because it doesn't explicitly say it initially The examiner said that looks like a seal because it's a dashed line just like dashed line five It's up by the hem where the cords where the pull cords go through. [00:17:24] Speaker 04: It looks like a seal [00:17:25] Speaker 04: They came in with an affidavit, just like the opposing counsel said. [00:17:30] Speaker 04: And after looking at the affidavit, the declaration by Mr. Cobbler said, well, there's no other express teachings other than this line in this drawing that it's a seal. [00:17:40] Speaker 04: So the examiner said, all right, even if it's not explicitly a seal and even if it's ambiguous, it would have been obvious to put one there. [00:17:47] Speaker 04: And the examiner, and you say, well, why? [00:17:49] Speaker 04: Well, when he looks at the secondary reference, which I think everyone discussed, the warrants reference, [00:17:54] Speaker 04: And you look at that, and yes, it is a different type of package. [00:17:59] Speaker 04: It's not a garbage bag, but it's a loose, flexible bag with a drawstring, with a hem. [00:18:05] Speaker 04: And sure enough, there's a seal up by where the cords are, the pull cords are. [00:18:10] Speaker 04: And the examiner identified that reference and looked at that evidence and said, you know, they knew to put an extra seal up there to keep those cords from falling down if they get slack. [00:18:20] Speaker 04: So to make sure there was easy access to the cords, [00:18:23] Speaker 04: The examiner's rationale was if you didn't have a seal in figure eight of Meyer up where that unnumbered dashed line is, the one that's not mentioned, but it's shown, he says without a seal there, there'd be a problem because then... But what about his argument that Warren's really was for a totally different purpose? [00:18:43] Speaker 04: Right. [00:18:44] Speaker 04: I don't think that's a problem, Your Honor, because the only reason the examiner is looking to Warren's is it's another flexible bag with a drawstring and a hem. [00:18:52] Speaker 04: and up around the top edge. [00:18:54] Speaker 04: And sure enough, they've got two seals. [00:18:56] Speaker 04: They've got an upper seal to hold those cords up there in place. [00:19:00] Speaker 04: And then there's a lower seal further down. [00:19:03] Speaker 04: Here, when you look at Meyer, the examiner says, well, this teaching from words would motivate an ordinary artist to actually have another seal up where that unnumbered dashed line is. [00:19:14] Speaker 04: And the reason why is if you didn't have that seal there, if these cords were in a loosened state, for example, when your trash bag isn't completely [00:19:22] Speaker 04: taught, let's say you take your big bag and you put it into a smaller can, it's going to be not taught. [00:19:28] Speaker 04: It's going to be loose. [00:19:29] Speaker 04: The drawstring could drop down. [00:19:30] Speaker 04: And if it dropped down because there was no seal there, all the way down to seal five, which is a big gap, and when you reach in through the opening, what they call apertures for accessing the drawstrings, you would have difficulty accessing the strings. [00:19:43] Speaker 04: Accordingly, in the examiner's view, based on that evidence, it would have been obvious to put a seal there. [00:19:49] Speaker 04: So that's the rationale. [00:19:50] Speaker 04: If you think you can go to page APPX 390 of the... When you're saying would have been obvious. [00:19:56] Speaker 00: So are you saying that the examiner said it would be obvious to combine Wirtz and Meyer? [00:20:03] Speaker 00: Are you saying that somehow this is a KSR, there's a limited... Right. [00:20:07] Speaker 04: I don't think the examiner ever said, I'm going to combine all the physical embodiments of Wirtz and put him in Meyer. [00:20:13] Speaker 04: I think what the examiner said is, [00:20:15] Speaker 04: I need to figure out whether or not an ordinary artisan looking at figure eight of Meyer would have known and would have been motivated to put an extra seal where this unnumbered dashed line is. [00:20:25] Speaker 04: And he says, in light of the teachings of Warns that shows a seal up by that upper hem area to keep the cord from drooping down, it would have been obvious to do that. [00:20:33] Speaker 04: That's the examiner's rationale. [00:20:35] Speaker 04: So I think the examiner didn't just pull that out of the air. [00:20:38] Speaker 04: The examiner did look at other prior art, the Warns reference, saw that, yes, seals were used [00:20:44] Speaker 04: up closer to the channel or the duct where the cords pass through. [00:20:47] Speaker 04: And that's exactly what you've got here with Meyer. [00:20:50] Speaker 04: You have a bag? [00:20:51] Speaker 00: So you're saying that to the extent that there were any gaps in the motivation to combine analysis, that doesn't matter because it really wasn't a pure motivation to combine case. [00:21:03] Speaker 00: It was more a KSR, this is reasonable, ordinary artisan in light of everything that's understood would have [00:21:14] Speaker 04: done this. [00:21:15] Speaker 04: Right. [00:21:16] Speaker 04: And how do we know what the ordinary artisan understood? [00:21:19] Speaker 04: By looking at the evidence in the record. [00:21:20] Speaker 04: What's the evidence in the record? [00:21:22] Speaker 04: The teachings of these other flexible bags that show hems with seals and up near where the pull cords are. [00:21:29] Speaker 04: And the examiner took that knowledge that an ordinary artisan would have from that evidence and said, therefore, if you didn't have a seal here, you'd have this problem of the drawstring dropping. [00:21:38] Speaker 04: And therefore, the examiner made a finding and said, therefore, an ordinary artisan would have known [00:21:44] Speaker 04: to add a seal there. [00:21:45] Speaker 04: And that's why he rejected it as obvious. [00:21:47] Speaker 04: I think that's ultimately the rationale that we're really disagreeing about. [00:21:52] Speaker 04: And I think it is based on evidence. [00:21:54] Speaker 04: It is based on evidence in the record. [00:21:56] Speaker 04: That's where the examiner got the teachings. [00:21:57] Speaker 04: And I think you can see that also reiterated in the board decision, where the board reiterates that rationale, that the examiner's reasoning is you don't want to have a drawstring that's inaccessible in this trash bag. [00:22:10] Speaker 04: You want to be able to get it. [00:22:11] Speaker 04: And all the references teach that. [00:22:13] Speaker 04: every one of the references, I think, Meyer, Werntz, I think there's another, Hubler and Piazza, each one of them say you have to have access, ready access to the drawstring so you can pull the strings and cinch the bag. [00:22:26] Speaker 04: That's the idea. [00:22:27] Speaker 02: Well, did I understand you to say, maybe I misunderstood or misheard you, did you say there was a, we know we have the Cobbler declaration or affidavit, did you say there was also [00:22:38] Speaker 02: an affidavit submitted by the examiner? [00:22:42] Speaker 04: No. [00:22:42] Speaker 04: No, Your Honor. [00:22:43] Speaker 04: There's no affidavit. [00:22:43] Speaker 04: The examiner simply relied on the teachings of the reference to determine what an ordinary artist would know. [00:22:49] Speaker 04: No, there was no affidavit by the examiner. [00:22:52] Speaker 04: But this is the findings of the examiner in our view, based on this record. [00:22:56] Speaker 04: Those findings are based on evidence in the record, and that's what, that's why those findings support the rejection. [00:23:04] Speaker 04: So I think, I think that's, are there any other questions that you might have? [00:23:09] Speaker 04: But I think we've addressed at least what appellant has argued here today. [00:23:13] Speaker 01: And so the focus of the entire rejection is the placement of the lower-bodied line. [00:23:22] Speaker 01: Is that fair? [00:23:25] Speaker 04: Yeah, I think the problem is, as I had mentioned, when we look at Figure 8 on page appendix 454, there's a nice big picture of it. [00:23:36] Speaker 04: When you look at that picture, you can see number five, it's undisputed that that's a seal. [00:23:42] Speaker 04: And then it's that gap between number five and the bottom of duck six, where there's this unnumbered dashed line that we actually created a picture of this in our brief, and we point to this unnumbered dashed line. [00:23:56] Speaker 04: If you look at page 24 of our brief, we've reproduced this picture, this drawing from appendix 454. [00:24:04] Speaker 04: And we have an arrow pointed to the unnumbered dashed line that we're talking about. [00:24:09] Speaker 04: That's the line that isn't described specifically in the specification of the Prior Art Meyer reference. [00:24:15] Speaker 04: But the examiner says, that looks like a seal. [00:24:19] Speaker 04: And although it's ambiguous, there's evidence in the record to support why an ordinary artisan would put a seal there. [00:24:25] Speaker 04: And what the examiner's rationale is is, if you didn't have a seal there, these cords, number 9, number 12, number 10, [00:24:33] Speaker 04: If they were loose in a loosened state, they would drop down all the way down to dash line number five. [00:24:38] Speaker 04: And then if you, the user, were to put your hands through this what they call opening aperture 814, you wouldn't be able to have easy access to that chord. [00:24:47] Speaker 04: Therefore, an ordinary artisan would know and would want to put a seal right where that unnumbered dash line is. [00:24:54] Speaker 02: Well, Mark, in the Meyer patent, we see the words seam and seal. [00:25:02] Speaker 02: What exactly? [00:25:03] Speaker 02: They sometimes seem to be used interchangeably, sometimes not. [00:25:08] Speaker 02: What do you understand to be the difference between those two words as used in Meyer? [00:25:13] Speaker 04: I understand your point, Your Honor, and I've read... It's a little confusing. [00:25:17] Speaker 04: I've read this Meyer reference probably four or five times, and what I've learned is they are a little bit loose with the language, that they aren't really precise where they use certain words in different ways. [00:25:27] Speaker 04: And for example, if you go to column three, [00:25:30] Speaker 04: on page appendix 456 of Meyer. [00:25:33] Speaker 04: At the very top, they use that language, seamed. [00:25:36] Speaker 04: Flap eight is seamed, for example, welded to the side panel as schematically shown at five. [00:25:43] Speaker 04: So what they're saying is seaming or sealing or welding or heat sealing, these are all interchangeable terms. [00:25:51] Speaker 04: So they take two pieces of plastic, flat pieces of plastic, they put them next to each other. [00:25:56] Speaker 04: They run a heat [00:25:58] Speaker 04: a beam across there. [00:26:00] Speaker 02: You're saying when we see seam and seal, they're kind of interchangeable as distinct from the word channel. [00:26:07] Speaker 04: Correct. [00:26:08] Speaker 04: I think channel, they also use the word duct. [00:26:11] Speaker 04: They talk about duct number six, they also call it channel six. [00:26:14] Speaker 04: And as you pointed out earlier, when we look at the duct six in figure eight, it's the place where the drawstrings can pass. [00:26:23] Speaker 04: And they can kind of sit inside this duct [00:26:26] Speaker 04: So then when you go to pick up this trash bag at the end of the week when it's filled with trash and you want to grab it and cinch it, you can easily grab these strings, pull them, tighten it up, pull the bag out and take it. [00:26:37] Speaker 04: That's the idea. [00:26:38] Speaker 04: And if the strings got lost in there because the opening, the gap in there was very long, the way the figure eight reflects, the examiner's point is you wouldn't be able to get those strings very easily. [00:26:50] Speaker 04: Therefore, an ordinary artist would want to have a seal up at that upper rim [00:26:54] Speaker 04: just like Wurtz has a seal at the upper rim to make sure the drawstrings don't fall down too far. [00:26:59] Speaker 04: That's basically the basis for the rejection. [00:27:02] Speaker 01: So you read Meyer, is that that entire space which is marked three on that figure eight of Meyer is sealed? [00:27:12] Speaker 04: Yeah, on Meyer figure eight, five is a seal. [00:27:15] Speaker 04: And then when you get up by three, that's kind of an open area where three is. [00:27:21] Speaker 04: And then when you get up to duct six, that's an open area where the strings pass. [00:27:25] Speaker 04: And what the examiner is saying is, if you didn't have this extra seal up just to define that more narrow duct six. [00:27:32] Speaker 04: What we're calling line X. Well, we're calling line X, exactly. [00:27:36] Speaker 04: The string would drop down. [00:27:37] Speaker 04: The drawstring would drop all the way down to seal five, because it couldn't go beyond seal five, because that's the bottom of where the bottom seal is. [00:27:44] Speaker 04: And that would be a problem. [00:27:46] Speaker 01: So you're saying space C and space three is sealed. [00:27:51] Speaker 01: Is that whole area is a seal? [00:27:53] Speaker 04: I think there's only a seal at dashed line five, and then above five, there's two pieces of plastic that are loose together. [00:28:00] Speaker 01: And then when you get up to... Well, there are a whole bunch of dotted lines, but there is this space, which is marked three. [00:28:07] Speaker 04: Correct. [00:28:07] Speaker 04: And that's simply defined as... What is that space? [00:28:09] Speaker 04: That's just described as a channel in this spec. [00:28:11] Speaker 04: They call it a channel, which is another opening where something could fit in there. [00:28:15] Speaker 01: It's called a channel. [00:28:15] Speaker 01: It's called a seam. [00:28:17] Speaker 04: Well, they call it that in the spec, Your Honor. [00:28:19] Speaker 04: If we go to page... [00:28:21] Speaker 04: Let's go up to page A456, appendix 456, at column three again at the very top, the same section we were reading from at lines four, five, and six. [00:28:32] Speaker 04: Each one of the channels, three and four, defines a duct or a hollow, number six, between the side wall portion, seven and eight. [00:28:40] Speaker 01: So what they're saying is, this channel seems three, four, forming the ducts, six. [00:28:46] Speaker 01: What they call three is seen. [00:28:47] Speaker 01: It's obviously not seen. [00:28:49] Speaker 04: Well, along the edge of three, along down the side, that is definitely a sealed seam. [00:28:54] Speaker 04: But across the middle, it's simply a channel that helps form it, form the duct six up above. [00:29:01] Speaker 01: And then later at line 53 says the seams three, four are folded over. [00:29:11] Speaker 04: Yes. [00:29:12] Speaker 01: As if that's really intended as a folded over. [00:29:15] Speaker 01: seem, which does not help Mr. Cobbler at all. [00:29:19] Speaker 01: It's certainly hard to know what to make of this. [00:29:23] Speaker 04: I think there's a lack of precision in the language and the specification. [00:29:27] Speaker 04: There's no doubt about that. [00:29:28] Speaker 04: But when you look at figure eight, the drawings reflect pretty clearly that there's drawstrings in the upper portion of the bag that their purpose is to cinch the bag. [00:29:37] Speaker 04: That's what they're there for. [00:29:39] Speaker 04: And the examiner's point is keeping those drawstrings within a duck six [00:29:45] Speaker 04: that's reasonable in height, prevents them from dropping down too low. [00:29:49] Speaker 04: And accordingly, in the examiner's view, and based on the prior references, it would have been obvious to have a seal, if you want to call it a seam, a seal along the length of unmarked dotted line, just below six there. [00:30:03] Speaker 04: That's basically the examiner's position. [00:30:07] Speaker 04: And the board affirmed that position based on this evidence, Your Honor. [00:30:12] Speaker 01: Okay, any more questions for the government? [00:30:15] Speaker 01: Anything else? [00:30:15] Speaker 01: Thank you very much. [00:30:16] Speaker 01: Thank you. [00:30:23] Speaker 01: Mr. Selinger. [00:30:24] Speaker 03: Thank you, Your Honor. [00:30:27] Speaker 03: The examiner found that Wirtz teaches the hem seal is important to keep the drawstring at an accessible position and the government repeats that position. [00:30:38] Speaker 03: That's just wrong. [00:30:41] Speaker 03: Wirtz [00:30:41] Speaker 03: teaches accessing the drawstrings 18 by positioning them outside of the bag in the notches. [00:30:49] Speaker 03: That's shown in figures 2, 4, and 7. [00:30:51] Speaker 03: And so Wernz has no concern about the drawstring dropping because the strings are collected outside of the bag. [00:31:06] Speaker 03: Meyer says nothing about a drawstring drop. [00:31:10] Speaker 03: or concern about it. [00:31:11] Speaker 03: And Meyer doesn't teach that problem. [00:31:13] Speaker 03: Meyer uses knots, knots 12 on each end. [00:31:18] Speaker 03: If a drawstring were to sag hypothetically, you wouldn't have to worry about a C, just pull the knot at end. [00:31:25] Speaker 03: The government, in its brief, points to some language in Meyer. [00:31:30] Speaker 03: But both, as we say in response, both of the portions that the government relies on in Meyer actually presume the drawstring is there. [00:31:41] Speaker 03: without worrying about some hypothetical line. [00:31:46] Speaker 03: So the drawstrings already solve this problem, which is really a search for rationale to combine the references. [00:31:59] Speaker 00: But you heard Mr. Lamarca argue that, in fact, this really isn't a combining of references. [00:32:06] Speaker 00: They're saying that words teaches [00:32:09] Speaker 00: the fact that there's a two-ply sidewall with two spaced apart seals with a two-ply sidewall. [00:32:17] Speaker 00: And it doesn't matter what the purpose of it is, because you could adapt that structure to what is at least ambiguously disclosed in Meyer. [00:32:27] Speaker 00: In other words, Werntz was just informative of what one of skill in the art would have understood Meyer to be. [00:32:33] Speaker 03: Well, perhaps, Your Honor, but let me say the actual rejection [00:32:37] Speaker 03: is my review of warrants. [00:32:41] Speaker 03: But in either event, if I assume hypothetically that warrants is sufficiently close that even though it's not exact, there's still the issue of why would you combine it? [00:32:56] Speaker 03: Warrants doesn't have a problem with drawstrings drooping. [00:33:02] Speaker 03: And Meyer doesn't have a problem with drawstrings drooping. [00:33:06] Speaker 03: They both have their own solution. [00:33:08] Speaker 03: Meyer was concerned about a knife effect when you pull the drawstrings at the top of the bag. [00:33:16] Speaker 03: That's what Meyer was concerned about. [00:33:19] Speaker 03: Meyer wasn't concerned about drooping. [00:33:21] Speaker 03: That's why the knots were there. [00:33:22] Speaker 03: The knots would keep the string from drooping and somebody just pull it and pull the drawstring out. [00:33:31] Speaker 03: And again, the disclosures in Meyer on which the government relies actually [00:33:37] Speaker 03: presume the drawstring is available, not one they have to find. [00:33:44] Speaker 03: Let me just close with that. [00:33:47] Speaker 03: Both Meyer and Werntz preceded the filing date of Mr. Cobbler's application by 22 years. [00:33:57] Speaker 03: In the Leo Pharmaceutical case, the court did note that 22 years of silence is [00:34:06] Speaker 03: an indication of hindsight. [00:34:08] Speaker 03: And I mentioned that in response to Your Honor's question about KSR. [00:34:13] Speaker 03: If the court has no other questions. [00:34:16] Speaker 01: Any more questions? [00:34:18] Speaker 01: Thank you, Your Honor. [00:34:20] Speaker 01: Thank you both. [00:34:21] Speaker 01: The case is taken under submission.