[00:00:22] Speaker ?: Look. [00:01:22] Speaker 05: Is it 15 minutes or 11? [00:02:00] Speaker 04: Okay, our next case is number 19 1014 Mr.. Rosa Good morning your honor Thomas. [00:02:12] Speaker 05: I rose you're representing. [00:02:13] Speaker 04: I think maybe if you pick the This close enough can you hear me clearly I think that works [00:02:33] Speaker 04: Well, they're going to have a single rebuttal, and they can do it however they want. [00:02:41] Speaker 05: Yeah, I will be arguing the rebuttal as well as the opening arguments. [00:02:45] Speaker 05: Do I have to have an associate do a portion of the opening, or is it my exclusively 100% vote? [00:02:53] Speaker 04: I'm sorry, I didn't hear what you said. [00:02:55] Speaker 05: I'll do both 100% of the opening and the closing arguments. [00:02:58] Speaker 04: OK. [00:02:59] Speaker 05: OK, fine. [00:03:01] Speaker 04: That's fine. [00:03:02] Speaker 05: And I'll start again. [00:03:04] Speaker 05: Good morning, Your Honor. [00:03:06] Speaker 05: My name is Thomas I. Rosier. [00:03:08] Speaker 05: I am lead counsel for Bassett Nutrition LLC. [00:03:12] Speaker 05: I have with me my legal associate, Sophie Namath, who will be assisting me in any documents that you may be making any inquiry of. [00:03:26] Speaker 05: Do you have any questions, or should I begin my opening statements? [00:03:29] Speaker 05: No, just go ahead. [00:03:31] Speaker ?: OK. [00:03:33] Speaker 05: Miriam Lowenstein and Leora Lowenstein, the co-inventors, developed a method to make a unique fruit bar that contains nothing else but a combination of two raw fruit, two dried raw fruits that [00:03:49] Speaker 05: Yet, the bars have a shelf life of over two years and a flavor profile of less than the amount of the apples, which most people would think if you combine apple with another fruit, apple would dominate. [00:04:04] Speaker 05: And that was a new and unexpected result that they created. [00:04:08] Speaker 03: Page 39 of the Blue Grave, the appellants cite the Lewinstein Declaration as setting forth experiments of the inventors that provide unexpected results. [00:04:21] Speaker 03: When I went to the declaration, I really didn't see much about the experiments, any foundation, anything like that. [00:04:29] Speaker 03: Where in the record is there cognizable evidence of this experimentation? [00:04:37] Speaker 05: Well, we're going specifically to the Lowenstein Declaration. [00:04:41] Speaker 05: As you cited paragraph 9, I would just... Give me a record site as to what... Yes, I will. [00:04:48] Speaker 05: APPX 0228. [00:04:49] Speaker 05: It's appendix 0228. [00:05:00] Speaker 03: But then all that says is through further experiments and so on. [00:05:03] Speaker 03: What gives me actual foundational evidence to describe these experiments? [00:05:11] Speaker 05: Well, these are individual inventors. [00:05:13] Speaker 05: It's not a fancy big experimental company. [00:05:16] Speaker 05: They did it in their shop, in their home. [00:05:19] Speaker 05: They basically did it through trial and error and basically used different combinations until they came up with something that was a winner. [00:05:27] Speaker 05: It's easy to have lots of laboratory notes and stuff like that if you're a major company. [00:05:33] Speaker 05: These are two genuine American entrepreneurs. [00:05:36] Speaker 05: They did it in their own backyard, their garage, and came up with the unique flavors and the unique products that have been very, very, very successful. [00:05:45] Speaker 05: and I might add, are the only products on the market that are completely healthy without preservatives, without sugars, without things that are very unhealthy for children and other people to eat. [00:05:57] Speaker 05: They came up with something truly unique and it was very successful. [00:06:08] Speaker 05: Should I continue on? [00:06:09] Speaker 03: Well, you can continue. [00:06:10] Speaker 03: I'm not satisfied with that answer, but you can keep going. [00:06:19] Speaker 05: We respectfully ask the panel to reverse the patent officer's rejection of all of the pending claims of invention on being obvious in light of a combination of seven cited references for the following reasons. [00:06:34] Speaker 05: One, the examiner failed to meet her burden of showing that there was a suggestion, teaching, or motivation for a person of ordinary skill in the art to combine these seven references, but instead read the disclosure of the present invention as a teaching tool to combine those seven references, which is unreadied hindsight. [00:07:00] Speaker 05: The claimed result of achieving a dominant flavor profile by adding a lesser amount of second fruit to apples and securing a two-year shelf life without adding anything to the two raw dried fruits or without refrigeration were unexpected. [00:07:19] Speaker 05: They were reached by the trial and error of the inventors and they were not disclosed in the cited prior art. [00:07:27] Speaker 05: The appellants believe that the board erred in holding that the fruit bar product that is the result of the products claimed in the application is substantially the same as the cited prior art, the acid bar. [00:07:42] Speaker 05: And therefore, the claimed characteristics of the fruit or product were inherently present in the facet bar discussed in three of the cited references, these being the TIB, the Sunder, and the PIPLEO plan. [00:07:59] Speaker 05: This is simply an early draft. [00:08:04] Speaker 05: As most inventors do, and I can tell you, I've been a lawyer for 40 years. [00:08:09] Speaker 05: Most of the time inventors create inventions and improve their own inventions after the fact. [00:08:15] Speaker 05: That's what happened here. [00:08:16] Speaker 05: They had an initial draft that you saw in the TIB, but that's not what they finally invented and was set forth in the claims that are in the patent that we're asking you to grant. [00:08:29] Speaker 05: This is also important. [00:08:32] Speaker 05: The examiner did not cite any comparable fruit product by a third party or other prior art disclosing a fruit product that contains only raw fruit, nothing else, and has a shelf life of two years. [00:08:47] Speaker 05: The only other fruit bar that the examiner cited [00:08:50] Speaker 05: was for the bear fruit borer by Mountain Organics. [00:08:55] Speaker 05: This was cited in the WebEx conference that I had with the examiner after she issued her first initial rejection. [00:09:03] Speaker 05: She cited the bear mountain argument, a bear mountain or [00:09:06] Speaker 05: saying, in her opinion, this new invention made the invention obvious. [00:09:11] Speaker 05: While we submitted a very extensive, responsive brief, in summary, the impel – provided evidence showing that this product was made of purees and concentrates – I'm talking about the Bear Mountain – not raw, dried fruits, and both the process and the end result product was entirely different than what was disclosed in the subject patent application. [00:09:34] Speaker 05: There was no comparable third-party product. [00:09:37] Speaker 05: The examiner could cite to that. [00:09:39] Speaker 05: It basically disclosed the present product. [00:09:41] Speaker 05: And she, in fact, did withdraw that. [00:09:44] Speaker 05: And you didn't see that citation ever again in the brief anywhere. [00:09:52] Speaker 05: In terms of obviousness or the non-obviousness, the Dacid blog, the Sunder, and the Paleo clan all discuss previous versions of the Dacid fruit bar. [00:10:02] Speaker 05: They do not discuss key elements of the claimed invention. [00:10:07] Speaker 05: Specifically, that pulp is not removed from the raw fruit ingredients, nor do they teach the specifically acclaimed steps of dicing and grinding the raw fruit ingredients or the flavor profile set for the lesser fruit. [00:10:22] Speaker 05: These are discussed in great detail and in tables in the patent application. [00:10:27] Speaker 05: Olson, for example, which is a second reference they cited, is completely unrelated biogas technology. [00:10:35] Speaker 05: That would not be combined with a first three references by one skilled in the arts. [00:10:40] Speaker 05: I believe that's an unreasonable analysis by the patent examiner and the board. [00:10:46] Speaker 05: We have what's called the WSDA disclosure. [00:10:49] Speaker 05: This goes to standard weight content of various fruits, but the fruits are whole fruits, not dried fruits. [00:10:56] Speaker 05: All the elements include skin, core, seeds, or included in the weight of one unit of the fruit. [00:11:03] Speaker 05: Plus, they also don't give you the size of the fruit in that analysis. [00:11:07] Speaker 05: I believe the examiner, again, used this as a draft, but it was simply reading into this far more than it really showed. [00:11:16] Speaker 05: The eat-by date, which showed a two-year shelf life, has the restriction that it's kept in a refrigerator. [00:11:22] Speaker 05: Our invention doesn't have to be in a refrigerator. [00:11:25] Speaker 05: It can be in an ordinary supermarket shelf life, not refrigerated. [00:11:30] Speaker 01: Can I ask you, the primary reference in this case that was relied on by the PTAB is your client's own product, right? [00:11:39] Speaker 05: The earlier draft of that, yes. [00:11:41] Speaker 05: Correct. [00:11:43] Speaker 05: That said Barr and two others that discussed it, yes. [00:11:46] Speaker 01: Right. [00:11:46] Speaker 01: There's a lot of inherency findings and different combination, maybe inherency findings that they, primary reference. [00:11:56] Speaker 01: would meet the claim limitations based on some of the other teachings of the other references. [00:12:02] Speaker 01: I mean, isn't your client in the best position to have rebut that with actual evidence, for example, that the primary reference, the that's it bar, doesn't satisfy the claim limitations? [00:12:15] Speaker 01: I don't see any evidence of that kind in the records. [00:12:23] Speaker 05: Well, basically, if you look at the claims, and they were very specifically drafted, they focused on the combination of apples and cherries, apples and pears and apples and apricots. [00:12:34] Speaker 05: Those were not in the earlier document that you saw. [00:12:39] Speaker 05: And you can say, well, they're only difference. [00:12:41] Speaker 05: We've listed a very long list of other fruits that they realize do work. [00:12:47] Speaker 05: And the answer is they substantially improve the product by showing these different fruits, and it made a big difference. [00:12:53] Speaker 05: And you're saying, well, wouldn't it be the same? [00:12:56] Speaker 05: No, it's not inherent. [00:12:58] Speaker 05: Because otherwise, number one, we wouldn't have gone through all the struggle of the patent and going to this level. [00:13:03] Speaker 05: Also, as I mentioned, there was no discussion of any removal of pulp in the earlier TIB disclosure that you talk about, and that was a key ingredient that we discussed and added to the claims to get them to the point where I thought they all were allowable. [00:13:21] Speaker 05: Also, there is no discussion of the dicing, and we go into a great detail of the nature of the dicing and grinding, not only in the independent claim one, but, for example, in dependent claim eight, where we go into a lot of points that are not shown and are not obvious to someone who doesn't really know how to do this. [00:13:42] Speaker 05: And the key thing, as I mentioned, [00:13:44] Speaker 05: There isn't a competing product on the market. [00:13:46] Speaker 05: For all the ones that were cited, all the ones that were shown by the patent office, there isn't a single one that's pure fruit with no additives, no sugars, no preservatives, that has a shelf life, that's nutrition and healthy for kids. [00:14:03] Speaker 05: All the stuff you see on the market's got preservatives, sugars, and probably a lot of things you can't even pronounce the words. [00:14:10] Speaker 05: And so they're very unhealthy. [00:14:12] Speaker 05: My client came up with a winner. [00:14:14] Speaker 05: And that's basically a key difference from here versus everything else that's out there in the market. [00:14:27] Speaker 04: OK, you're rebuttal time. [00:14:28] Speaker 04: Do you want to save it? [00:14:29] Speaker 05: I would like to save it. [00:14:30] Speaker 05: Thank you very much. [00:14:32] Speaker 04: Thank you. [00:14:35] Speaker 02: Thank you, Your Honors, and may it please the court. [00:14:47] Speaker 02: The board's finding that the claimed fruit bar is obvious over appellant's own prior art, that's it bar, is supported by substantial evidence. [00:14:55] Speaker 02: And appellants have failed to establish any patentability based on the claimed process limitations or unexpected results because they failed to compare [00:15:04] Speaker 02: the claims to their own product, which is the prior art, that's it are. [00:15:08] Speaker 02: For these reasons, we ask that the court affirm the board's decision. [00:15:12] Speaker 02: And I'm happy to take any questions that the panel may have. [00:15:18] Speaker 04: OK. [00:15:18] Speaker 04: Thank you. [00:15:19] Speaker 02: Thank you. [00:15:24] Speaker 04: Mr. Rosa, do you have some time if you want to use it? [00:15:27] Speaker 05: I have a brief rebuttal, yes. [00:15:30] Speaker 05: On page 20 of the appellee's brief, the Solicitor General confirmed that the PTAB found that the prior art did not explicitly disclose the fruit bar having a flavor of the second fruit. [00:15:44] Speaker 05: This is on app 001 appendix 0015. [00:15:49] Speaker 05: Further, the Solicitor General on page 22 agreed that the combination of TIB, Sunder, and Paleo plan does not explicitly teach that the pectin content of the apples in the acid bars or that the bars have a shelf life of over two years. [00:16:08] Speaker 05: The PTAB concluded that these limitations were inherent. [00:16:13] Speaker 05: We respectfully request that this panel reverse the examiner and PTAP's finding, because findings that the above limitations were inherent is not supported by sufficient evidence. [00:16:26] Speaker 05: They argue that the prior art had two fruits, at least one being different, and then took the incorrect position that the above unobvious features were inherent without first establishing [00:16:39] Speaker 05: a prima facie case of obviousness which requires a finding of motivation to combine the prior art. [00:16:47] Speaker 05: The doctrine of inheritance should not be applied absent a clearly expressed motivation or reason to combine the three arts that is based on the art themselves. [00:17:00] Speaker 05: In the appellants brief on page 17, lines 2 to 3, they state that Lowenstein asserts for the first time that the process limitation, pulp is not removed, imports a compositional difference than that the argument has been waived. [00:17:19] Speaker 05: I very respectfully disagree with that. [00:17:21] Speaker 05: the argument has not been waived. [00:17:24] Speaker 05: In Lowenstein's declaration, which we've already looked at briefly, paragraph 11, inventor Lowenstein declares, quote, it was further discovered through trial and error and experiments by my son, Leo Lowenstein is Mrs. Lowenstein's son, and that I and these new and unexpected results were achieved by not removing the pulp from the raw apples and not removing the pulp from the second raw fruit. [00:17:51] Speaker 05: On page 33 lines, it says the appellant's brief to the PTAB in the patent text cited on pages 41 of our appeal brief, beginning on line 16, referring to paragraph 0120 from pages 30 to 31 of the patent text. [00:18:13] Speaker 05: last three lines of the paragraph 0121 state. [00:18:18] Speaker 05: The fruit is not put through a processor where all of the pulp extracted as with juicers which gives a person who consumes the juice a sugar high. [00:18:28] Speaker 05: See pages 41 of appeal brief. [00:18:30] Speaker 05: The appeal brief pages 553 lines 13 to 16 show pulp is not removed, is a significant improvement. [00:18:41] Speaker 03: How's that properly within our response to what the government's saying? [00:18:45] Speaker 05: I'm sorry, I didn't hear your question clearly. [00:18:47] Speaker 03: I said, how is that properly within our reply to the government's very brief argument? [00:18:53] Speaker 05: Well, basically, the government said we didn't raise it in our appeal to the PTAB, and we did raise it to the PTAB. [00:19:01] Speaker 05: And I pointed that one, it was raised during the prosecution. [00:19:04] Speaker 05: Two, it was raised in the PTAB. [00:19:06] Speaker 05: And so the government saying, well, you didn't raise it during your argument to the PTAB is simply not a correct statement. [00:19:13] Speaker 03: I'm talking about oral argument. [00:19:16] Speaker 05: I'm sorry. [00:19:19] Speaker 05: It was written in our appeal brief. [00:19:21] Speaker 05: It wasn't oral. [00:19:27] Speaker 05: I'm sorry. [00:19:29] Speaker 05: The current oral argument is that the fact that we believe as a significant improvement, the pulp not being removed was raised clearly in the patent text where it's cited, clearly in our appeal brief to the PTAB, which they basically ignored and incorrectly [00:19:46] Speaker 05: said, no, you waived it because you didn't raise it. [00:19:49] Speaker 05: That's what the Solicitor General said. [00:19:52] Speaker 05: And I respectfully point out that she is not correct. [00:19:55] Speaker 05: We did raise it in the text and in our appeal brief to the PTAT, as well as addressed it here in our appeal brief here. [00:20:03] Speaker 04: Okay. [00:20:03] Speaker 04: I think we're out of time. [00:20:04] Speaker 04: Thank you. [00:20:05] Speaker 04: Mr. Rosa, thank both counsel for cases.