[00:00:36] Speaker 04: Just want to say something to the little kids. [00:00:39] Speaker 04: You guys were great. [00:00:40] Speaker 04: You were so well behaved. [00:00:43] Speaker 04: You were more respectful of the court than many of the lawyers that come in front of us. [00:00:48] Speaker 04: So I want to tell you what a great job you all did. [00:01:09] Speaker 00: Okay, the next argued case is number 19, 1127, in Raefocht, Mr. Fountain. [00:01:20] Speaker 01: Good morning, Your Honors. [00:01:21] Speaker 01: I'm Ryan Fountain, and I represent David Flaught and Martin Clanton. [00:01:25] Speaker 01: To put this case in context, this is the first of three appeals to this court this year that will be dealing with the issue of what happens when the Patent Office does not have evidence of the level of ordinary skill in the art, LOSA evidence. [00:01:39] Speaker 01: The second case coming up will be Coastal Industries versus Shower Enclosures America, case number 19-1431. [00:01:46] Speaker 01: That case is fully briefed and will probably come up for argument the first week of December, the first week of January. [00:01:55] Speaker 01: The third case is Lippard v. Moride, case number 19-2121. [00:01:59] Speaker 01: That case is not fully briefed. [00:02:02] Speaker 01: The Losa evidence issues are not crystallized at this point, but it was a substantive, appealable issue before the district court. [00:02:10] Speaker 01: The point is that when the patent office doesn't have evidence of the level of ordinary skill in the art, it creates all sorts of problems in patent cases. [00:02:19] Speaker 01: And perhaps today we can help solve some of that problem. [00:02:23] Speaker 01: In summary of this case, there are two basic issues. [00:02:28] Speaker 01: Imagination is not evidence. [00:02:31] Speaker 01: And in the anticipation analysis, we have to start at the start. [00:02:34] Speaker 01: In the reply brief, I pointed out several [00:02:37] Speaker 01: Disagreements with the commissioners legal and factual contentions the most troubling of which is the contention that the patent examiner does not have to make a level of Ordinary skill in the art determination in an anticipation analysis. [00:02:54] Speaker 03: Well, that's just flat wrong Anticipation case about whether the preamble deserves patentable weight the term travel trailer in part [00:03:04] Speaker 01: But before we can even get to that. [00:03:07] Speaker 03: And if it doesn't get patentable weight, then you're left with an analysis about the body of the claim and whether the prior art discloses that. [00:03:17] Speaker 01: If it doesn't get patentable weight, then what we're left with is the illogic of having to eat your cake and have it too. [00:03:24] Speaker 01: If travel trailer has no meaning, then how does trailer have any meaning? [00:03:29] Speaker 01: Then how can the interpretation offered by the commissioner have any meaning at all? [00:03:34] Speaker 01: And it fails as a matter of logic, not just the issue of whose eyes we're looking through. [00:03:41] Speaker 01: We have to look through the eyes of a posita. [00:03:44] Speaker 01: So yes, the preamble issue is an issue. [00:03:46] Speaker 01: But before we even get there, anticipation is a question of fact to be reviewed by this court for substantial evidence. [00:03:54] Speaker 01: But of course, that means it's bounded by rules of law. [00:03:58] Speaker 01: You can't do an anticipation analysis without first doing claims construction. [00:04:04] Speaker 01: And claims construction has to be done through the eyes of a person of ordinary skill in the art, a posita, if you will. [00:04:11] Speaker 01: You don't know what those eyes are until you know what the level of ordinary skill in the art is. [00:04:18] Speaker 01: If you have no evidence of that, you can't do your claims construction. [00:04:22] Speaker 01: That's why we're starting at the start when we look at Losa evidence. [00:04:25] Speaker 01: Similarly, when we judge by the substantial evidence standard, no evidence is not substantial evidence. [00:04:32] Speaker 01: Making a factual determination of anticipation. [00:04:35] Speaker 04: Is there some dispute over what the level of skill in the art is in this case? [00:04:40] Speaker 01: There is a dispute in that we don't know what it is. [00:04:43] Speaker 04: When we found out... But that could be, even if you're right, it could be harmless error. [00:04:49] Speaker 04: Unless you demonstrate to the court that it would have made a difference in this case, then the agency's failure to simply articulate what the level of skill in the art is, is nothing but harmless error. [00:04:59] Speaker 01: Except we did demonstrate that harm. [00:05:01] Speaker 01: We said specifically there are three types of harm. [00:05:04] Speaker 01: Since we don't know what your level of ordinary skill in the art is, we don't know what kind of countervailing evidence to offer. [00:05:11] Speaker 01: If you pegged it high, we would go get declarations and expert testimony. [00:05:16] Speaker 04: If you pegged it low, we could go get survey evidence to show that you pegged it wrong, because obviously... Well, it only matters if they pegged the level of skill wrong if somebody at the level of skill you think is appropriate would have decided the issue differently. [00:05:31] Speaker 04: Otherwise, it's harmless error. [00:05:34] Speaker 04: And that's right, except that we can't... You need to show, in this case, that their failure to articulate it affected the outcome. [00:05:42] Speaker 04: Otherwise, it's harmless error. [00:05:44] Speaker 04: You can't hide behind, well, we're not sure. [00:05:47] Speaker 04: You have to tell me, why does the level of skill in the art matter? [00:05:51] Speaker 04: It's a travel trailer. [00:05:53] Speaker 04: This isn't rocket science. [00:05:56] Speaker 04: Why does the level of skill in this art matter for this claim, this claim? [00:06:01] Speaker 01: We did do that. [00:06:02] Speaker 01: In the reply to the final office action, when the first issue first came up, we explained that if we knew what the level of boredom and skill in the art is, we could have got evidence, we could have made amendments, we could have even abandoned prosecution. [00:06:14] Speaker 01: But by not telling us and relying upon what is by definition an arbitrary and capricious decision, we are denied the opportunity to participate. [00:06:23] Speaker 03: We are then forced to... I've got to tell you, I don't follow your argument at all. [00:06:27] Speaker 03: It's so abstract and vague. [00:06:30] Speaker 03: What you need to do is tether your arguments to the facts of the case. [00:06:36] Speaker 03: Your claim is for a travel trailer, where in the box there's a movable internal wall. [00:06:44] Speaker 03: And then the PTO relied on prior art references of not travel trailers, but tractor trailers. [00:06:51] Speaker 03: Tractor trailers where inside the box there's an internal movable wall. [00:06:57] Speaker 03: Okay, so your argument really needs to be that the PTO failed to give patentable weight to the first few words of your claim, travel trailer, by relying on tractor trailer. [00:07:12] Speaker 03: Tractor trailer prior art references in your view cannot anticipate travel trailer claims. [00:07:20] Speaker 03: The question here is whether it was right or wrong for the PTO to essentially delete those first few words, a travel trailer. [00:07:29] Speaker 03: And so you need to explain to me why that was wrong for the PTO to do. [00:07:36] Speaker 03: The science of tractor trailers versus travel trailers and the level of ordinary skill in the art, I gotta tell you it doesn't move me very much. [00:07:45] Speaker 03: I mean these references are pretty much self-defining and self-explanatory. [00:07:52] Speaker 01: To a degree that's true. [00:07:54] Speaker 03: If you want to keep talking about level of ordinary skill in the art and the mysteries of what is the level of ordinary skill in the art for travel trailers and therefore the need for you to perhaps [00:08:04] Speaker 03: file declarations about a travel trailer versus a tractor trailer, you can do that, but I'm just telling you what I'm thinking about the case. [00:08:14] Speaker 01: Okay. [00:08:15] Speaker 01: We did that so far. [00:08:16] Speaker 01: We did put portions in our brief, both before this court and before the Board of Appeals, explaining why refrigerator trailers... Don't tell me what you did. [00:08:25] Speaker 01: Tell me what the PTO did wrong. [00:08:28] Speaker 01: What the PTO did wrong and assumed that refrigerator trailer is a travel trailer. [00:08:33] Speaker 01: What the PTO did wrong is it assumed that a bulkhead divider designed to keep cargo from shifting creates two separate compartments, one of which can be a living compartment. [00:08:45] Speaker 01: The reason that the level of ordinary skill in the art and the posita matters is those are arbitrary interpretations that we draw out of plain English. [00:08:56] Speaker 01: What are arbitrary? [00:08:57] Speaker 01: that a refrigerator trailer is not a travel trailer. [00:09:01] Speaker 01: Everybody should know that. [00:09:01] Speaker 01: We should be able to look at a dictionary and do that. [00:09:04] Speaker 01: The Patent Office didn't. [00:09:06] Speaker 03: Well, the Patent Office didn't feel like it needed to because it didn't feel like the opening words of travel trailer deserve any patentable weight. [00:09:16] Speaker 03: So that's a legal question. [00:09:18] Speaker 03: Now your challenge is to explain why [00:09:21] Speaker 03: That was legally erroneous for the agency to elect to give no patentable weight to the phrase travel trailer in your claim. [00:09:31] Speaker 01: In short, it was erroneous because you don't always ignore a preamble, if that is a preamble. [00:09:36] Speaker 01: You look to see where those opening words provide meaning and context for the claim. [00:09:41] Speaker 01: And in this case, it did. [00:09:42] Speaker 01: We walked through a comparison with Arctic Cat, for example, to show that a travel trailer provides a structural context. [00:09:50] Speaker 01: If, by contrast, you take the commissioner's interpretation, its intended use, then you put that back into the claims and you read, intended use having a compartment. [00:09:59] Speaker 01: Structure has a structure. [00:10:03] Speaker 01: Structure can have a use, but a use doesn't have a structure. [00:10:08] Speaker 01: And that's not acceptable even under plain English. [00:10:11] Speaker 01: So clearly the commissioner was wrong in that point. [00:10:14] Speaker 01: But we've come back to the level of ordinary skill in the art is, fundamentally, how do we conceptualize what happened here? [00:10:22] Speaker 01: That's where I was going with it. [00:10:24] Speaker 01: But yes, a travel trailer is not a refrigerator trailer. [00:10:27] Speaker 01: No question about it. [00:10:30] Speaker 01: Your Honor, as I would reserve the remainder of time for rebuttal, I should have any other specific questions I can address at this time. [00:10:36] Speaker 00: All right, you've raised all the issues you want us to consider. [00:10:39] Speaker 00: Yes, Your Honor. [00:10:43] Speaker 02: Okay, thank you. [00:10:44] Speaker 02: Let me please the court, Your Honor. [00:10:46] Speaker 00: Mr. Lamarca. [00:10:47] Speaker 02: Yeah, I think the agency approached this case as a simple claim, it's not complicated. [00:10:54] Speaker 02: The claim says travel trailer and it defines in the body of the claim [00:10:58] Speaker 02: a movable wall in a trailer compartment. [00:11:01] Speaker 04: Except that it also in the body of the claim refers to the travel trailer. [00:11:06] Speaker 04: The agency has argued that it's in the preamble and therefore not a limitation, but it's not just in the preamble, it's in the body of the claim as well. [00:11:15] Speaker 04: So why isn't it a limitation? [00:11:16] Speaker 04: where it appears in the body of the client. [00:11:19] Speaker 02: I think regardless of whether it's in the preamble or not, the agency's position is it's a statement of intended use. [00:11:25] Speaker 02: It's a trailer being used for travel purposes. [00:11:28] Speaker 04: But that there was significant extrinsic evidence in this case that was introduced, two separate pieces of evidence that defined a recreational vehicle, and in particular a travel trailer, as having living quarters, which kind of makes sense to me, though I'm no expert. [00:11:43] Speaker 04: It kind of makes sense that an RV or a travel trailer would have a living quarters and not be refrigerated for chickens. [00:11:52] Speaker 02: Correct. [00:11:52] Speaker 02: And the board addressed that evidence, Your Honor, which, by the way, came in late in the game. [00:11:56] Speaker 04: The board didn't reject it as late. [00:11:57] Speaker 02: No, they didn't. [00:11:58] Speaker 04: So the fact that it came in late is not relevant. [00:12:01] Speaker 02: Nevertheless, Your Honor, it wasn't something that the examiner had as prior art. [00:12:05] Speaker 02: In fact, the Miller reference, which is one of the things that appellants submitted with their... But the board accepted it. [00:12:11] Speaker 04: Yeah, they looked at it. [00:12:11] Speaker 04: And so what, how is a board finding that... So tell me what the board found. [00:12:20] Speaker 04: I understood them as finding this is simply not a limitation. [00:12:24] Speaker 02: If you go to page appendix seven of the board decision, you'll see [00:12:26] Speaker 02: where they address those two pieces of evidence that were brought in by appellant. [00:12:30] Speaker 02: One of them was the Miller reference, which is another patent publication from 2010. [00:12:36] Speaker 02: And another one comes from actually a trademark board decision called the Woodall RV. [00:12:41] Speaker 04: Yes, but so here's the problem. [00:12:43] Speaker 04: Here's the problem with this. [00:12:45] Speaker 04: The board actually says these references don't define structure, really. [00:12:54] Speaker 04: They're just intended use, right? [00:12:56] Speaker 04: So the recreational vehicle has a living area and it says a towed recreational vehicle is referred to as a travel trailer. [00:13:10] Speaker 04: And then it says, in other words, Miller distinguishes travel trailers from recreational vehicles primarily in terms of intended use, namely towability. [00:13:20] Speaker 04: I beg to differ. [00:13:21] Speaker 04: I think that that's not supported by substantial evidence. [00:13:23] Speaker 04: And the reason is towability is a structural component of a trailer or a recreational vehicle, right? [00:13:31] Speaker 04: The reference as a recreational vehicle can drive itself. [00:13:34] Speaker 04: It then says a travel trailer can't. [00:13:36] Speaker 04: It has to be towed behind another vehicle. [00:13:39] Speaker 04: So how is that a [00:13:40] Speaker 04: intended use as opposed to a structural limitation. [00:13:43] Speaker 02: There's no dispute that the prior art can be towed. [00:13:46] Speaker 02: Those are towable trailers. [00:13:47] Speaker 02: No, no. [00:13:47] Speaker 04: We're focusing on whether or not the board's decision makes any gosh darn sense. [00:13:52] Speaker 02: Well, I think if you see further down on Appendix 7, it says most travel trailers are equipped with electric and water passes. [00:13:58] Speaker 04: Are you then agreeing with me that towability is not just a statement of intended use, but rather is a structural limitation? [00:14:04] Speaker 02: Yeah, I acknowledge that towability is a structural feature [00:14:06] Speaker 04: So we both agree that that finding by the board is definitely not supported by substantial evidence because it doesn't make any sense. [00:14:12] Speaker 02: Well, no, I think what the board is saying is actually consistent with what you're saying, Your Honor. [00:14:16] Speaker 02: They're basically saying a travel trailer is a trailer that's towed, whereas a recreational vehicle you actually drive in the cab and it's all one piece. [00:14:25] Speaker 02: And that's what these prior art references are talking about. [00:14:27] Speaker 03: But if you read further down the board decision... The prior art references aren't recreational vehicles. [00:14:31] Speaker 02: No, they aren't, Your Honor. [00:14:33] Speaker 02: They are trailers used for cargo. [00:14:35] Speaker 02: They're tractor trailers. [00:14:36] Speaker 02: Yeah, and they can carry cargo. [00:14:38] Speaker 02: They can carry all kinds of things. [00:14:40] Speaker 03: So this is a claim for a travel trailer. [00:14:41] Speaker 03: It mentions that if you want to call it a preamble, it's in the preamble, but it's also in the body of the claim. [00:14:47] Speaker 03: And let's say these tractor trailers weren't in the prior art. [00:14:56] Speaker 03: Would Mr. Flott be able to accuse these tractor trailers of infringement? [00:15:02] Speaker 03: based on his travel trailer claim? [00:15:04] Speaker 02: I think that's why... I'd be shocked if he would. [00:15:07] Speaker 02: Well, I think that's why the agency made the rejection, Your Honor. [00:15:09] Speaker 02: I think the point that the examiner was trying to make is the examiner's reading the claim with not enough structural limitations as a result of that term. [00:15:17] Speaker 02: And the examiner's view and the board's view, when they look at the language travel trailer and then all they see in the body of the claim is discussion and description of the moveable walls and the physical structure of the trailer. [00:15:29] Speaker 03: What about the case law that talks about, you know, when you [00:15:33] Speaker 03: use a term from the preamble in the body of the claim, then that term in the preamble, yes, it is part of the claim and should be recognized and given patentable weight. [00:15:47] Speaker 03: I mean, I'm not aware of a case where a term that was used in the preamble, assuming this is a preamble here, that is also recited in the body of the claim is not given patentable weight. [00:15:58] Speaker 03: Are you aware of a case that does that? [00:16:01] Speaker 02: I'm not aware of one, Your Honor. [00:16:02] Speaker 03: So this would be the first one, if we were to do that. [00:16:05] Speaker 02: I can't say that for sure, Your Honor. [00:16:06] Speaker 03: Well, the first one you and I know about. [00:16:08] Speaker 02: That I'm aware of. [00:16:08] Speaker 02: But the point is, first of all, with respect to claim one, it's not referenced in the body to claim at all. [00:16:12] Speaker 02: The board pointed that out. [00:16:13] Speaker 02: With respect to claim two. [00:16:15] Speaker 04: Wait, wait, it says the travel trailer. [00:16:16] Speaker 02: But not in the body of the claim. [00:16:18] Speaker 02: If you treat that as the preamble as Judge Shen proposed, as the board has proposed. [00:16:21] Speaker 04: No, no, no. [00:16:22] Speaker 04: A travel trailer having. [00:16:24] Speaker 04: Correct. [00:16:24] Speaker 04: The board says travel trailer is the preamble, the word having is the transition word and the rest is the body. [00:16:28] Speaker 02: And there's no mention of travel trailer thereafter the word having anymore. [00:16:32] Speaker 04: Yes, Your Honor, but the point is... Wait, so it is mentioned in the body, correct? [00:16:40] Speaker 02: Yes, correct. [00:16:42] Speaker 02: What the Board is trying to say, and I'm trying to explain it, in Claim 2, it's not mentioned in the body. [00:16:46] Speaker 02: The Board pointed that out. [00:16:48] Speaker 02: If you look at the Board's decision, they explained that in Claim 1, yes, travel trailer comes up in the end, and in the other claim, it's not mentioned in the body. [00:16:55] Speaker 02: I believe that's in the Board decision. [00:16:57] Speaker 02: But the point is, [00:16:59] Speaker 02: They're not describing structural features of the trailer in the body. [00:17:02] Speaker 00: Your point seems to be that the board is not required to read claims the way any ordinary person would read them. [00:17:10] Speaker 02: No, I'm not trying to make that point, Your Honor, no. [00:17:14] Speaker 02: That's what you're telling us, right? [00:17:15] Speaker 02: What I'm trying to do, Your Honor, is explain the board's interpretation of this claim. [00:17:18] Speaker 02: They view the word as travel. [00:17:20] Speaker 02: as a functional aspect of a treatment. [00:17:24] Speaker 00: Exactly. [00:17:24] Speaker 00: You're telling us that they can make up after the fact by the time it gets through the whole appellant process, that no, this is the way it should have been read, except nobody else in the world would have done so. [00:17:34] Speaker 02: No, from the very beginning of this process, the examiner has always said, [00:17:37] Speaker 02: that he viewed this as a statement of intended use, as a functional term. [00:17:42] Speaker 02: The board did the same thing. [00:17:43] Speaker 00: The examination seemed to have the appropriate balance with the prior art, as you and Judge Chen have been discussing with tractor trailers. [00:17:52] Speaker 00: Now you're telling us it's something else. [00:17:55] Speaker 02: No, I'm not, Your Honor. [00:17:56] Speaker 02: I'm sorry if I was interpreted that way. [00:17:59] Speaker 02: Let me try to restate it. [00:18:01] Speaker 02: From the very beginning of this case, when the examiner first picked it up from the first office action, the examiner viewed this [00:18:08] Speaker 02: as a statement of intended use. [00:18:10] Speaker 02: In other words, it could have said landscaping trailer. [00:18:12] Speaker 02: Okay, if I've got an empty trailer and I throw one more in the back, now it's a landscaping trailer. [00:18:16] Speaker 00: They said something that apparently anyone who has a recreational vehicle or whatever, or a travel trailer, knows what they're talking about. [00:18:26] Speaker 02: Well, and the point is, to the extent that there was any evidence to support that from Appellant, and when you look at that evidence, even that evidence that they submitted [00:18:33] Speaker 02: They use the words like may, and it may use, and it may have living type of conveniences in it. [00:18:40] Speaker 02: None of it says mandatorily anything is in there. [00:18:43] Speaker 00: Isn't the real issue whether it would have been obvious to put this partition in a travel trailer when tractor trailers, which otherwise are identical, have such a partition? [00:18:55] Speaker 02: Well, the reason it's an anticipation rejection, Your Honor, according to [00:18:58] Speaker 02: the examiner and the board is, the prior art references do disclose all the structural features. [00:19:04] Speaker 02: They disclose walls, they disclose movable walls, they disclose everything that these claims require. [00:19:08] Speaker 04: The only thing that they, I'm sorry, Your Honor. [00:19:13] Speaker 04: Why is the board focusing on whether the words in the body, the travel trailer in the body of claim one is a statement of intended use? [00:19:21] Speaker 04: I don't understand body limitations [00:19:26] Speaker 04: to be presumptively intended use or to be able to even be ignored if there's intended use. [00:19:33] Speaker 04: Forget about the use of this word in the preamble. [00:19:35] Speaker 04: This thing's in the body. [00:19:37] Speaker 04: Agreed. [00:19:37] Speaker 04: So what you're saying to me sounds like you're still arguing about whether the preamble's limitation and I'm saying that's almost irrelevant because this is a claim limitation in the body and there certainly isn't some presumption against it being a structural limitation under those circumstances. [00:19:55] Speaker 02: Ok, let's get past the dispute about preamble and let's just talk about the language travel trailer. [00:20:02] Speaker 02: The examiner called it a statement of intended use. [00:20:04] Speaker 02: Regardless of whether it's in the preamble or in the body, functional language doesn't get ignored, but it's not a structural limitation either. [00:20:13] Speaker 02: That's the difference. [00:20:13] Speaker 02: So let's talk about, and I believe... The word trailer... [00:20:19] Speaker 04: Is not functional, correct? [00:20:21] Speaker 02: And the patent office gave that weight because it went out and found a trailer as prior art. [00:20:26] Speaker 04: So travel trailer is not structural, even though the only evidence of record, the only extrinsic evidence of record which the board discussed, talked about it being structural. [00:20:39] Speaker 02: Well, that's not what the board said in their decision about that evidence. [00:20:42] Speaker 04: I understand what they said, but that's what the evidence says. [00:20:43] Speaker 04: So I'm wondering if the board's decision is supported by the judge. [00:20:45] Speaker 02: I don't know if that's true. [00:20:46] Speaker 02: You're on our list. [00:20:46] Speaker 02: We go look at the evidence. [00:20:48] Speaker 02: The board decision quotes the evidence directly, and they quote directly from it. [00:20:53] Speaker 02: And in the board decision, they say, when we look at this evidence, [00:20:57] Speaker 02: We see languages like most travel trailers are equipped with electric and water capacities. [00:21:02] Speaker 04: But that's not the issue. [00:21:03] Speaker 04: It says recreational vehicles, as referred to here, can be motorized or towed, but in general have a living area, which provides shelter from the weather as well as personal conveniences. [00:21:13] Speaker 04: And then the personal conveniences is what contains the such as. [00:21:17] Speaker 02: And they said in general. [00:21:18] Speaker 02: And they said may. [00:21:19] Speaker 04: And my point is... Well, it doesn't say may before a living area. [00:21:22] Speaker 02: But the point is, from the board's perspective, that evidence... It doesn't say may anywhere in that. [00:21:26] Speaker 02: I think it uses the word most and it also says, if we read the direct quotes that the board put in the board decision, most popular class traders. [00:21:37] Speaker 04: No, because I'm focusing on the Miller reference and you're focusing on the Woodalls reference. [00:21:43] Speaker 02: Okay, let's look at the Miller reference. [00:21:45] Speaker 04: Okay, wait, so it says, use the words most, it doesn't mean most travel trailers. [00:21:50] Speaker 04: You really don't know these references, Mr. Walker. [00:21:51] Speaker 04: Well, I'm looking at, let's look at page 53. [00:21:54] Speaker 04: I'm talking, stop talking over me, you've done it the entire argument. [00:21:57] Speaker 02: Yes, Your Honor. [00:21:57] Speaker 04: It says, probably the single most popular class of towable RVs is the travel trailer. [00:22:03] Speaker 04: It doesn't say most. [00:22:06] Speaker 04: Travel trailers have certain things. [00:22:08] Speaker 04: The word most appears in the context of recognizing that travel trailers are the most popular class of towable RVs. [00:22:15] Speaker 04: What am I missing? [00:22:16] Speaker 02: Well, the part that the board cites is a bit further down that says, most travel trailers are equipped with electric and water capacities, which means they don't all have it. [00:22:25] Speaker 02: Some of them may, most of them may, but it's not a requirement that everyone has it. [00:22:28] Speaker 04: That's electric and water capacities. [00:22:30] Speaker 04: That says nothing about whether they have to have living quarters. [00:22:34] Speaker 02: OK, and a bunk bed could be living quarters. [00:22:36] Speaker 02: And we can throw a bunk bed in the back of a cargo trailer. [00:22:40] Speaker 04: Wait, wait. [00:22:40] Speaker 04: In the back of a refrigerated car? [00:22:41] Speaker 04: Who is the bunk bed for? [00:22:42] Speaker 04: We can turn the refrigerator off. [00:22:44] Speaker 04: It's a refrigerator. [00:22:45] Speaker 04: Oh my gosh. [00:22:46] Speaker 02: The point is it's a use, is the point that the board's trying to make. [00:22:49] Speaker 02: All these are uses that we're talking about right now. [00:22:52] Speaker 03: What if the claim had said a recreational vehicle, an RV? [00:22:58] Speaker 03: That's what it leads with, and then it says it in the body of the claim. [00:23:03] Speaker 03: Would you be able to use these tractor trailer, refrigerator trailer disclosures as an anticipatory reference? [00:23:11] Speaker 02: It might be a different case, Your Honor, because that might be a more specific term. [00:23:15] Speaker 02: If you look at the... Okay, so if... The answer is no. [00:23:21] Speaker 00: No, I'm saying that it might make a difference. [00:23:24] Speaker 03: Okay, it would make a difference because why? [00:23:27] Speaker 03: Because recreational vehicle is an understood term of art and we just can't reasonably conclude that tractor trailers or refrigerated trailers can match and satisfy a claim for a recreational vehicle, right? [00:23:45] Speaker 03: So what if we were to conclude based on the evidence that Mr. Fott submitted that a travel trailer is a term of art. [00:23:55] Speaker 03: It's an actual category of recreational vehicles. [00:24:00] Speaker 03: And then if that's the case, [00:24:01] Speaker 03: then wouldn't we arrive at the same conclusion that a refrigerated trailer, that a tractor trailer couldn't possibly anticipate a claim for a class of recreational vehicles, i.e. [00:24:14] Speaker 03: a travel trailer? [00:24:15] Speaker 02: I think that's correct, Your Honor. [00:24:16] Speaker 02: And the examiner, I think, agrees with your point. [00:24:18] Speaker 02: If you look at page 33 of the appendix, the examiner said, quote, the applicants were given an opportunity to either amend one or both of their claims to more closely claim only travel trailers that are recreational vehicles [00:24:31] Speaker 02: which is basically what you're proposing, or could have even introduced a new independent claim to a recreational vehicle, but instead they decided to argue that the prior art are not travel trailers. [00:24:42] Speaker 02: So what the examiner is saying is he's reading the language travel trailer is merely a trailer used for travel purposes, and if there would have been recreational vehicle amended into the claim, that might have had an impact on the way the claim is read. [00:24:55] Speaker 02: So I think the examiner agrees exactly with what you've proposed. [00:24:58] Speaker 02: but that's not what's in the claim. [00:25:00] Speaker 02: What's in the claim is travel trailer. [00:25:02] Speaker 02: He refused to amend his claim according to the examiner, even given the opportunity to, and chose not to specifically find it. [00:25:08] Speaker 03: I guess what I'm saying is if we read the record and conclude that the board is unreasonable in [00:25:17] Speaker 03: in failing to accord the term travel trailer as an understood term of art in the recreational vehicle field, then this can't be a 102 reference. [00:25:28] Speaker 03: These two references. [00:25:30] Speaker 02: Yeah, correct, Your Honor. [00:25:31] Speaker 02: The court is reviewing the claim construction of the agency, and if you find that that claim construction is unreasonable based on this record... Well, just to be clear that it's not such a broad statement. [00:25:43] Speaker 03: It's more the specific question that a travel trailer [00:25:47] Speaker 03: is used in this claim is not just any trailer on earth that can travel, but it's actually an understood term of art in the recreational vehicle arena. [00:25:59] Speaker 02: And I agree. [00:26:00] Speaker 03: You know, it's just like a rocket ship, that's a term of art, a dune buggy is a term of art, a travel trailer is a term of art. [00:26:05] Speaker 03: And so therefore tractor trailers, refrigerated trailers can't be any of those things. [00:26:11] Speaker 02: Correct, then it wouldn't be anticipation. [00:26:13] Speaker 02: Then the next question would be for the agency to determine whether or not [00:26:16] Speaker 02: There's some other basis that it's unpatentable. [00:26:18] Speaker 02: For example, the Miller Reference itself appears to disclose a recreational vehicle with a movable wall, which appears to be exactly what this claim requires. [00:26:27] Speaker 02: And the Miller Reference itself is a 2010 date on it. [00:26:32] Speaker 02: So that itself would probably have to be considered by the agency in the event that you made that determination. [00:26:38] Speaker 02: But I think where the agency stands today is that it views this as a statement of intended use, regardless of whether it's in the preamble or the body. [00:26:46] Speaker 02: a statement of intended use, and if it's merely a statement of intended use under the Schreiber doctrine, which is binding precedent on this court, if you've got the disclosed structure and it's capable of that use, it's good enough to anticipate. [00:26:58] Speaker 02: And in this case, according to the board and the examiner, the prior art, which is, like you said, a truck trailer or some other trailer for carrying cargo, if that's capable of carrying any type of living conveniences like a bunk bed, it would qualify. [00:27:14] Speaker 03: So just to be clear, for you to say that the agency understands the term travel trailer is any trailer that can travel, that's basically saying that what happened here is Mr. Fott [00:27:31] Speaker 03: that it's not really a real term, and then he just sort of smashed two words together, travel trailer, and that's a coined term for any trailer that travels. [00:27:42] Speaker 02: Yeah. [00:27:42] Speaker 02: And if he really intended to coin the term, as you say, the specification to be your own lexicographer has to clearly, clearly articulate that it's a specialized definition, and we didn't see that in the spec. [00:27:54] Speaker 02: If he coined it. [00:27:56] Speaker 00: Right. [00:27:56] Speaker 00: If he coined it. [00:27:56] Speaker 02: And the agency doesn't agree with that at this point, Your Honor. [00:27:59] Speaker 00: OK, but no clarification was requested, that apparently the examiner understood it the way the applicant and the way it's written, without all the rest of this. [00:28:11] Speaker 00: Right, the examiner read the claim and learned it. [00:28:14] Speaker 00: So how or why should we revise that? [00:28:19] Speaker 00: This was not an issue, an examination. [00:28:25] Speaker 02: Yeah, and we're not asking for anything to be revised, Your Honor. [00:28:28] Speaker 02: In our view, what the examiner did and what the board did here is fine. [00:28:33] Speaker 02: The claim construction was based on the language of the claim in light of the specification. [00:28:37] Speaker 02: Later, appellant at during appeal before the board brought in additional evidence to try to show that this term travel trailer was like a term of art. [00:28:45] Speaker 02: the board analyzed that evidence and disagreed. [00:28:47] Speaker 02: And that's kind of where we're at. [00:28:49] Speaker 04: Mr. Lamarca, can I ask you just, your time is up and I'm not trying to keep you up here forever, but will you just address the claim that the agency must in every case articulate with precision what the level of skill and the art is before it can do anything else? [00:29:07] Speaker 04: It's almost like some sort of gatekeeper or something. [00:29:10] Speaker 04: I don't know. [00:29:11] Speaker 04: I'm not fond of gatekeepers. [00:29:13] Speaker 02: Here's where we agree. [00:29:14] Speaker 02: We do agree that when claim construction is taking place at the agency under the broadest reasonable interpretation, that's done with the claim language in light of the specification and from the perspective of an ordinary skilled artist. [00:29:27] Speaker 02: We understand that. [00:29:28] Speaker 02: But we don't agree that in every case an examiner has to make a specific fact finding [00:29:33] Speaker 02: about the ordinary skill level. [00:29:35] Speaker 02: This is not an obvious misrejection. [00:29:36] Speaker 04: He has to make a fact finding about the skill level. [00:29:38] Speaker 04: I think the question is whether he has to articulate it, right? [00:29:41] Speaker 04: Because he can't actually say how the claims are construed based on a reasonable person. [00:29:46] Speaker 04: He has to be de facto construing the claims as a skilled artisan. [00:29:50] Speaker 04: So somewhere in that examiner brain has to be some assessment of what a skilled artisan would be in order to know what that skilled artisan would think. [00:29:57] Speaker 02: Agreed, but it doesn't have to be written down [00:30:01] Speaker 02: but you're right that actually happens in the process and if you read the Jung, a quote from the Jung case in Ray Jung or in Ray Young, if I'm mispronouncing it, I apologize. [00:30:10] Speaker 02: All that is required of the office to meet the prima facie burden is to set forth the statutory basis of the rejection and the reference or references relied upon in a sufficiently articulate and informative matter to meet the notice requirement. [00:30:23] Speaker 02: Here, the examiner's discussion of the theory, anticipation, the prior art basis of the rejection, in our case the two [00:30:30] Speaker 02: truck trailer references, and an identification of where each limitation of the rejected claim is shown in the prior art references by specific column and line number was more than sufficient to meet the burden. [00:30:40] Speaker 02: So under Jung, Section 132 requires adequate notice of that rejection, which includes the claim construction where they apply the prior art to the claim. [00:30:50] Speaker 04: Well, it's more than sufficient to meet the notice possibly in the first instance. [00:30:52] Speaker 04: Of course, had the applicant then argued that no, a skilled artisan [00:30:58] Speaker 04: would have been this person, and that person would have known this, that, or the other thing. [00:31:02] Speaker 04: You know what I'm saying? [00:31:03] Speaker 04: If it comes into dispute, even though not stated what the level of skill and the art is initially by the examiner, if the applicant brings it into real dispute, it would make a difference. [00:31:16] Speaker 04: Certainly then the agency would be required, wouldn't it, to say what the level of skill and the art would be? [00:31:24] Speaker 02: I agree, Your Honor, but in this case what happened was the appellant [00:31:25] Speaker 02: made an argument saying, we think that claim is more than a use statement, an intended use statement. [00:31:30] Speaker 02: We think an ordinary artist might view that differently. [00:31:32] Speaker 02: They presented no evidence at all. [00:31:34] Speaker 02: The examiner looked at the claim, looked at the spec, disagreed. [00:31:38] Speaker 02: Later in the game, Appellant brought forth this other evidence, the Miller reference and this other document would all. [00:31:44] Speaker 02: The board then did analyze that evidence and said, you know, we looked at your evidence, but we don't think it's sufficient to show an actual structural limitation. [00:31:53] Speaker 02: We still agree with the examiner. [00:31:54] Speaker 02: that it's basically a statement of intended use. [00:31:57] Speaker 02: Now, if they would have come forth with additional evidence on top of that that said, no, no, no, no, no, this is affirmatively a structural feature in this term, everyone in the art knows it, but that evidence isn't in the record, because even if you look at this evidence, the evidence the Woodall reference and the Miller reference, if you read them, [00:32:12] Speaker 02: They even talk about the option of using these cargo spaces for cargo or living space. [00:32:18] Speaker 02: The point is even the evidence that they brought forth contemplates using the trailer for multiple purposes. [00:32:24] Speaker 02: So what the examiner and the board eventually concluded is this is really all about how you're using a trailer with movable walls. [00:32:32] Speaker 02: That's really what this boils down to. [00:32:34] Speaker 02: That's the agency's position. [00:32:36] Speaker 02: And we do agree with Judge Chen's point. [00:32:38] Speaker 02: If you think that construction's unreasonable, that's the basis to [00:32:42] Speaker 02: will return our anticipation rejection. [00:32:43] Speaker 02: That doesn't make it patentable, but it would take care of this anticipation rejection, Your Honor. [00:32:48] Speaker 02: I think that's where we're at. [00:32:49] Speaker 02: But I don't think there's any problem in the law that has to be fixed by this case. [00:32:55] Speaker 00: Thanks for your time. [00:32:58] Speaker 00: Can I ask a question? [00:32:59] Speaker ?: OK. [00:33:00] Speaker 00: Thank you, Mr. Mamarka. [00:33:01] Speaker ?: Thank you. [00:33:01] Speaker 01: Mr. Fountain. [00:33:01] Speaker 01: Your Honors, I'd like to address what I consider to be three mistakes that the Commissioner just made. [00:33:09] Speaker 01: He said the term travel trailer is not in claim two. [00:33:12] Speaker 01: If we look at appendix 129 and we look at the second to last sentence, we see that the trailer, the trailer is there in that claim. [00:33:23] Speaker 01: And obviously that represents the travel trailer referred to in the first sentence. [00:33:28] Speaker 01: So we're talking about the trailer as having a longitudinal length defining with respect to structure in claim two as well. [00:33:36] Speaker 00: You're telling us that this claim [00:33:39] Speaker 00: can be and should be construed to cover tractor trailers? [00:33:43] Speaker 01: No, I'm saying it covers travel trailers because the antecedent basis for the word the trailer, back to the first sentence, is a travel trailer. [00:33:52] Speaker 01: It does not cover tractor trailers. [00:33:55] Speaker 01: The second mistake that I believe the commissioner just made is in saying that [00:33:58] Speaker 01: The examiner viewed from the outset this was a matter of intended use. [00:34:03] Speaker 01: No. [00:34:04] Speaker 01: That is nowhere in the first office action. [00:34:06] Speaker 01: That comes up in the final office action after supposedly we had our chance to amend not knowing what we were shooting against. [00:34:14] Speaker 01: The third comes to the issue of Jung. [00:34:18] Speaker 01: In the Jung case, a definition or articulation of a level of ordinary skill in the art [00:34:24] Speaker 01: was not a direct issue in that case. [00:34:26] Speaker 01: We've made it a direct issue here. [00:34:28] Speaker 01: When we found out that claims construction was what was going on, we asked for that evidence specifically. [00:34:34] Speaker 03: Can I ask you about the Miller reference? [00:34:37] Speaker 03: The Miller reference, yes. [00:34:37] Speaker 03: The travel trailer? [00:34:40] Speaker 03: Yes. [00:34:40] Speaker 03: Does it disclose a movable interior wall? [00:34:44] Speaker 01: Yes, it does. [00:34:46] Speaker 03: So why doesn't that anticipate? [00:34:49] Speaker 03: The claim is [00:34:52] Speaker 03: Extremely simple. [00:34:54] Speaker 03: Our claim is extremely simple. [00:34:56] Speaker 03: It's a travel trailer with two compartments and an interior movable wall so that you can change the relative size of two compartments in the travel trailer. [00:35:09] Speaker 03: So why doesn't Miller anticipate that? [00:35:13] Speaker 01: To be fair, sir, I wrote the Miller reference. [00:35:16] Speaker 01: Can you please explain why Miller is... I can't do that without being fair to Forest River Industries, who now owns that patent. [00:35:26] Speaker 01: We believe that our invention is separate and distinct from theirs, but without opposing counsel here to defend himself, I'd be reluctant to do that. [00:35:34] Speaker 03: Okay, but you agree with me that Miller discloses a travel trailer with an interior movable wall. [00:35:41] Speaker 01: Yes. [00:35:41] Speaker 01: Does it have the rest of the features of the claim? [00:35:43] Speaker 03: Okay, there are no other features of this claim. [00:35:48] Speaker 03: So, getting back now to the actual references in this case, your tractor trailer, your refrigerated trailer, prior art references. [00:35:58] Speaker 03: Why isn't it painfully obvious to modify a travel trailer to have an interior movable wall like it was already known in the art for other types of trailers? [00:36:11] Speaker 01: Very good question. [00:36:12] Speaker 01: But to answer that, we have to know what a posita is. [00:36:15] Speaker 01: And the level of ordinary skill in the art, nothing that's critical in this industry. [00:36:18] Speaker 03: Well, can you just tell me, like we're two people having a conversation, tell me what's the genius move here of having an interior wall that's movable for a travel trailer compared to an interior movable wall for other kinds of trailers that was already known in the prior art. [00:36:37] Speaker 01: Because people who design travel trailers don't design refrigerator trailers. [00:36:43] Speaker 01: They don't know about that technology that's not within their level of skill. [00:36:50] Speaker 01: Okay? [00:36:51] Speaker 01: Your Honor, are there any other questions I can help you with? [00:36:54] Speaker 01: Then I thank you for your consideration. [00:36:58] Speaker 00: Thank you. [00:36:58] Speaker 00: Thank you both. [00:36:59] Speaker 00: The case is taken under consideration.