[00:00:14] Speaker 04:
We will hear argument next in case number 181901 in Ray Wark.

[00:00:23] Speaker 04:
Whenever you're ready, Mr. Young.

[00:00:28] Speaker 01:
Thank you.

[00:00:30] Speaker 01:
I've been ready for an hour.

[00:00:33] Speaker 04:
I guess I should say whenever we collectively are here.

[00:00:37] Speaker 01:
Yes, correct.

[00:00:39] Speaker 01:
Thomas Young for the appellant, Cynthia Wark.

[00:00:43] Speaker 01:
Mrs. Wark is present in the courtroom and vitally interested in the outcome of this case.

[00:00:52] Speaker 01:
It's a Section 103 case.

[00:00:54] Speaker 01:
It's all about the obviousness of her invention in designing a tote bag.

[00:01:01] Speaker 01:
specifically to hang on the seat side assist handle of a golf cart.

[00:01:07] Speaker 01:
The patent office examiner and the board said, there's nothing to this.

[00:01:11] Speaker 01:
It's not an invention.

[00:01:12] Speaker 01:
It's hopelessly obvious that we're not going to grant the patent on it.

[00:01:17] Speaker 01:
And here's where they went wrong.

[00:01:20] Speaker 01:
103 analyses based on the GRAM protocol, scope and content of the prior art differences,

[00:01:31] Speaker 01:
level of skill in the art, rationale for combining the references to prove something is obvious, is evidence-based.

[00:01:40] Speaker 01:
There is evidence in this case.

[00:01:43] Speaker 01:
And there's plenty of case laws that says that that must be evidence-based, the Panduit versus Dennison case, the Axo versus the United States International Trade Commission case.

[00:01:55] Speaker 01:
And finally, this court's case that says you can't reach

[00:02:02] Speaker 01:
the conclusion that some combination is just common sense unless you go through the evidence on the way.

[00:02:11] Speaker 01:
In this case, this court's decision on that score was the Arendy v. Sampson case, 2016.

[00:02:23] Speaker 01:
Both the examiner and the board

[00:02:25] Speaker 01:
have departed from a proper objective approach to obviousness using the evidence and using the law.

[00:02:34] Speaker 02:
General, what did you say again the invention in this case was?

[00:02:38] Speaker 01:
The invention is the specific design of a tote bag to fit such that the strap will fit on and hang over the seat side assist handle

[00:02:54] Speaker 01:
of a golf cart in such a way.

[00:02:58] Speaker 02:
But looking at it, it says that this is a combination claim.

[00:03:02] Speaker 02:
That's correct.

[00:03:02] Speaker 02:
It involves a golf course.

[00:03:04] Speaker 02:
I'm sorry, not a golf course.

[00:03:06] Speaker 02:
A golf cart with certain structural features.

[00:03:09] Speaker 02:
Correct.

[00:03:09] Speaker 02:
And then a personal tote bag adapted.

[00:03:13] Speaker 02:
And that tote bag has certain features.

[00:03:15] Speaker 01:
Correct.

[00:03:17] Speaker 01:
And Mrs. Wark did bring a tote bag.

[00:03:19] Speaker 01:
If I can just point to it and show you where

[00:03:24] Speaker 01:
The critical point of novelty lies.

[00:03:28] Speaker 01:
The attachment points for the strap must be at the top rear of the bag, and the distance between them must match the distance between, or closely match, the distance between the anchor points of the seat side assist handle.

[00:03:47] Speaker 01:
That structural limitation is found, those structural limitations are clearly found

[00:03:53] Speaker 01:
in every claim on appeal.

[00:03:56] Speaker 01:
And the result of that match is this particular arrangement of the tote bag on the golf cart.

[00:04:11] Speaker 02:
So you're focusing on, even though it's a combination claim, you're focusing on the unique features of the tote bag.

[00:04:18] Speaker 01:
allowed the combination to be made.

[00:04:20] Speaker 01:
Mrs. Work did not invent the golf cart, did not invent the seat side assist handle.

[00:04:25] Speaker 01:
She took it the way she found it.

[00:04:26] Speaker 01:
She designed a tote bag to perform a certain function in combination with that seat side assist handle.

[00:04:34] Speaker 01:
That is correct.

[00:04:37] Speaker 01:
Now, the board came to the conclusion

[00:04:45] Speaker 01:
that there was no structural limitation.

[00:04:49] Speaker 01:
There was no departure in the design of the tote bag from the prior art at all.

[00:04:56] Speaker 01:
Or did they?

[00:04:58] Speaker 01:
Here's what the board said on page 12 of the opinion.

[00:05:05] Speaker 01:
This is appendix page 12.

[00:05:09] Speaker 01:
I quote.

[00:05:11] Speaker 01:
Appellant makes no modification whatsoever to the known prior art shoulder strap carry bag of Ammerman.

[00:05:23] Speaker 01:
They didn't stop there because the sentence continues without punctuation with the sole possible exception of the spacing between the attachment points for the carry strap.

[00:05:40] Speaker 01:
which we consider at best to be a matter of routine optimization.

[00:05:47] Speaker 01:
So they went to the exact point of asserted novelty in the structure and the necessity for that exact point of novelty to match the distance between the anchor points of the seat side assist handle on the golf cars and brushed it off, described it as only a possible

[00:06:09] Speaker 01:
exception to the proposition that she made no modification whatsoever to the tote bag, when in fact she did.

[00:06:20] Speaker 01:
And then farther down, they said that because of this, this is simply a new use of an old device.

[00:06:34] Speaker 01:
When the patent simply arranges old elements with each performing the same function that had been known to perform, then it's obvious under KSR.

[00:06:45] Speaker 01:
But it's not an old device.

[00:06:48] Speaker 01:
It is a new device that's specifically designed for a certain new performance.

[00:06:57] Speaker 01:
And if you don't have that specific design change, the new performance doesn't work.

[00:07:04] Speaker 01:
So they simply brushed off incorrectly with, frankly, double talk about the key points of novelty in the tote and how it fit the golf cart.

[00:07:20] Speaker 01:
Now, the second failure that they made was relying on common sense.

[00:07:27] Speaker 01:
Basically, they said, despite the fact that the examiner

[00:07:32] Speaker 01:
reconstructed the invention from a string of up to six references in 11 different ways.

[00:07:38] Speaker 01:
And the references are all over the road.

[00:07:41] Speaker 01:
They're in the field of golf.

[00:07:42] Speaker 01:
They're in the field of purses.

[00:07:44] Speaker 01:
They're in the field of carry bags for computers.

[00:07:47] Speaker 01:
They're in all sorts of different fields.

[00:07:49] Speaker 01:
The examiner never identified the relevant art, never identified a person of ordinary skill in the art, just went on and said,

[00:07:59] Speaker 01:
I can reconstruct the invention by picking this element from this pattern, this element from this pattern, this element from another pattern.

[00:08:07] Speaker 01:
And finally, coming up with the Fulford pattern that shows your seat side assist handles.

[00:08:13] Speaker 01:
And the board said, it's not necessary to do any of that.

[00:08:19] Speaker 01:
All you need is Ammerman, which shows a tote bag, and Fulford, which shows

[00:08:28] Speaker 01:
a seat-side assist handle on a golf cart, and the invention is immediately obvious.

[00:08:34] Speaker 03:
It also pointed to hard, or the idea of hanging bags off of an armrest in a vehicle.

[00:08:42] Speaker 01:
A trash bag hanging on an armrest.

[00:08:44] Speaker 01:
But look at all the things that are wrong with hard.

[00:08:48] Speaker 01:
The handles go across.

[00:08:51] Speaker 01:
First of all, it's an open top trash bag.

[00:08:54] Speaker 01:
It's got nothing to do with the game of golf.

[00:08:58] Speaker 01:
The board said the relevant art is the game of golf.

[00:09:01] Speaker 01:
The hards bag's got nothing to do with the game of golf.

[00:09:04] Speaker 01:
It's not analogous art.

[00:09:06] Speaker 01:
The handles are cords.

[00:09:08] Speaker 01:
They're not adjustable.

[00:09:10] Speaker 01:
They go across the open top of the bag, and it hangs on

[00:09:16] Speaker 01:
an arm that has only one anchor point.

[00:09:20] Speaker 01:
It's got the cords and their distance between their attaching points are in the wrong place.

[00:09:26] Speaker 01:
And the distance got nothing to do with a match between the anchor points of an inverted U-shaped assist handle.

[00:09:37] Speaker 01:
The hard arm rest sticks out from a hinge point.

[00:09:43] Speaker 01:
and does this.

[00:09:45] Speaker 01:
Totally irrelevant piece of prior art.

[00:09:48] Speaker 01:
OK.

[00:09:49] Speaker 01:
Here's the second departure from the evidentiary-based approach to the analysis of Mrs. Wark's invention.

[00:10:03] Speaker 01:
They said that once you have a tote bag with a strap that's adjustable,

[00:10:11] Speaker 01:
And once you have a golf cart with a seat-side assist handle, it's obvious to hang the tote bag on the handle.

[00:10:20] Speaker 01:
That's common sense, they said, common sense.

[00:10:24] Speaker 01:
But the Arendy case, which came from this court in 2016, says you've got to have an evidentiary base to make that conclusion.

[00:10:35] Speaker 03:
What if we read the board as relying, at least in part, on the hard reference with the hanging the bag, the trash bag over the armrest?

[00:10:45] Speaker 03:
Now, that might not be a piece of evidence you agree with, but it's more than the board merely relying on the two words, common sense.

[00:10:55] Speaker 03:
It's talking about common sense in the context of recognizing that it was known in the art to hang bags off of vehicle armrests.

[00:11:03] Speaker 01:
some kind of bag on some kind of armrest, but that really doesn't reach the claimed invention, does it?

[00:11:09] Speaker 03:
It doesn't get you all the way there, but it's the point it gives you perhaps a rationale for, in light of the background of the invention, saying that it was well known that we're looking for convenient places to stow equipment, bags, etc.

[00:11:27] Speaker 03:
with a golf cart, then you know that you can hang bags off armrests

[00:11:32] Speaker 03:
Why not try to use what we know from hard, that you can, it was known in the yard to hang bags off armrests, to perhaps hang a bag off of a golf cart armrest.

[00:11:45] Speaker 01:
Here's why.

[00:11:46] Speaker 01:
There is evidence in the case.

[00:11:48] Speaker 01:
If we're going to reach common sense to just say it's obvious and common sense to hang something on a seat side assist handle of a golf cart, there is evidence in the case.

[00:11:59] Speaker 01:
And we've got to go by that evidence.

[00:12:01] Speaker 01:
The evidence is the Fulford patent.

[00:12:04] Speaker 01:
The board said, remember, Ammerman and Fulford is all we need.

[00:12:10] Speaker 01:
The art is the game of golf.

[00:12:12] Speaker 01:
Fulford is in the game of golf.

[00:12:15] Speaker 01:
Fulford tells us exactly what the seat side assist handle is for.

[00:12:22] Speaker 01:
Number one, it prevents somebody from sliding off the seat and falling on the ground if the driver of the golf cart makes a sharp turn.

[00:12:31] Speaker 01:
Number two, you can rest your elbow on it.

[00:12:35] Speaker 01:
And number three,

[00:12:37] Speaker 01:
A golfer who maybe isn't quite as young or spry as some of them are is going to use it to assist himself or herself getting in and out of the golf cart.

[00:12:52] Speaker 01:
He never said you hang something on it.

[00:12:56] Speaker 01:
I've been playing golf for six years.

[00:12:59] Speaker 01:
I've never seen anyone hang anything on the seat side assist handle of a golf cart, but you don't have to take my word for it.

[00:13:06] Speaker 01:
You've got Fulford's word for it.

[00:13:09] Speaker 01:
And that's the evidence.

[00:13:10] Speaker 01:
If the board is going to say, this is an important reference that teaches seat side assist handles, it's got to get to it to get to the common sense element.

[00:13:24] Speaker 01:
It's got to go through Fulford and look for some suggestion in Fulford that you hang things on.

[00:13:33] Speaker 01:
and design things to dimensionally match the anchor points of this seat side assist handle.

[00:13:43] Speaker 01:
It's not there.

[00:13:45] Speaker 01:
Teaching's not there.

[00:13:47] Speaker 01:
In my view, there's a prejudice in the Patent Office against simple inventions, although we knew a long time ago with Adam's battery case in 1966 that that shouldn't be the case.

[00:14:00] Speaker 01:
But nevertheless, it's there.

[00:14:03] Speaker 01:
Number two, or the third point, and I'll close with this.

[00:14:06] Speaker 04:
You've used most of your rebuttal time already.

[00:14:10] Speaker 01:
I see that I have.

[00:14:11] Speaker 01:
So maybe I can wind it up with this.

[00:14:16] Speaker 01:
There was a failure on the board's part and on the examiner's part to give any credit whatsoever to Mrs. Warg's declaration and testimony with respect to the commercial success that she's enjoyed with her product.

[00:14:33] Speaker 01:
the testimonials that came from six golf pros.

[00:14:37] Speaker 01:
Now, if the relevant art is the game of golf, which I'm inclined to agree with, let's ask ourselves, who is the person of ordinary skill in the game of golf?

[00:14:48] Speaker 01:
Is it a guy that designs golf clubs?

[00:14:50] Speaker 01:
Is it a golf player?

[00:14:51] Speaker 01:
Is it a guy that designs balls?

[00:14:54] Speaker 01:
Or is it the pro who runs the pro shop?

[00:14:57] Speaker 01:
That's the guy I think we have to look to.

[00:15:00] Speaker 01:
We have testimonials from six pro shop golf operators, and they all said Mrs. Work's invention is the coolest thing they've ever seen, and they've never seen anything else like it.

[00:15:19] Speaker 01:
They brushed it off.

[00:15:21] Speaker 01:
I'll have just one more thing to say, but I'll save it for my next time.

[00:15:27] Speaker 01:
Thank you.

[00:15:39] Speaker 04:
Thank you.

[00:15:40] Speaker 00:
Mr. Court, it sounds like the panel has an understanding of the issues, so I'm happy to answer any questions if you have any.

[00:15:49] Speaker 04:
Can you address what the best bases are for moving from an intuition that this is simple and commonsensical if you're going to have a bag to store stuff

[00:16:09] Speaker 04:
while that you want to carry around, why not attach to a golf cart?

[00:16:14] Speaker 04:
How do you get that out of the evidence as opposed to the board member, or I guess the examiner, and then the board member's intuition?

[00:16:25] Speaker 00:
Well, I'll first clarify what the board used common sense for in its opinion.

[00:16:31] Speaker 00:
And on page 9, it says, no more than common sense is required to use a seat-side assist handle as a convenient place to loop

[00:16:39] Speaker 00:
a shoulder strap of a tote bag.

[00:16:41] Speaker 00:
So it wasn't the board using common sense for the entire obviousness conclusion.

[00:16:46] Speaker 00:
It was using it to combine the Ammerman bag with the Fulford handle.

[00:16:56] Speaker 04:
And the examiner had the hard reference, which was... And also to set the right dimensions for the Ammerman handle.

[00:17:09] Speaker 00:
The board concluded that setting that distance was routine optimization, which I think is different and separate from the common sense that it used to combine the two references.

[00:17:22] Speaker 00:
And so with the hard reference, which is hanging something from an armrest on a chair, combined with the chair itself and the armrest in the golf cart with Fulford,

[00:17:38] Speaker 00:
And then the Ammerman tote bag altogether, I think those three references make a strong obviousness case.

[00:17:45] Speaker 00:
And we don't need to resort to common sense for the entire obviousness conclusion.

[00:17:54] Speaker 00:
So does that answer your question?

[00:17:59] Speaker 03:
Perhaps.

[00:18:02] Speaker 03:
Can you go back to the routine optimization for the design of the bag, having attachment points at certain places in order to most properly and efficiently hang the bag?

[00:18:16] Speaker 00:
Sure.

[00:18:17] Speaker 00:
So that part of the claim, it's fairly broad.

[00:18:21] Speaker 00:
It says that the distance between the attached ends have to be marginally greater or equal to the maximum longitude

[00:18:29] Speaker 00:
longitudinal dimension between the anchor points of the assist handle.

[00:18:32] Speaker 00:
So essentially it has to fit snugly around the bottom.

[00:18:37] Speaker 00:
And what the board said was that somebody with ordinary skill could figure out how to adjust the strap so it fits that way.

[00:18:50] Speaker 03:
Could, but why would they, I guess is the question.

[00:18:55] Speaker 00:
I guess they would so that it fits snugly on the handle so that it doesn't flap around.

[00:19:04] Speaker 00:
The board said essentially that having that distance is something that an ordinary person of skill in the art could tinker with and figure out.

[00:19:20] Speaker 04:
Did the board talk about flapping around or words to that effect?

[00:19:27] Speaker 00:
The board did not use the word flapping around.

[00:19:28] Speaker 00:
That was my own words.

[00:19:30] Speaker 04:
No, no.

[00:19:30] Speaker 04:
I mean, greater stability, whatever.

[00:19:33] Speaker 04:
But did the board say something about irrelevant artisan, seeing that as a reason to do what the artisan could do if only the artisan had a reason to do it?

[00:19:47] Speaker 00:
I would say the board just used the term optimum

[00:19:50] Speaker 00:
optimum range, and it depended on routine optimization to come to those numbers, but didn't make a discussion of what happens if it's a little loose or a little tight, because the claim is pretty broad.

[00:20:12] Speaker 00:
It just requires

[00:20:17] Speaker 00:
marginally greater or equal to distance from the assist handle.

[00:20:21] Speaker 00:
It doesn't require anything about flapping around, which were my words.

[00:20:28] Speaker 00:
If the panel has no further questions, I'll yield my time.

[00:20:43] Speaker 04:
Okay, thank you.

[00:20:53] Speaker 01:
Just a couple of additional comments, maybe a little analogy.

[00:20:58] Speaker 01:
People with cargo that are walking up to a golf cart universally and put it in the bins that are immediately behind the seats and between the seats and the golf bags.

[00:21:10] Speaker 01:
They don't even think about hanging something on a seat side assist handle.

[00:21:13] Speaker 01:
They follow Mr. Fulford's directions and understand that there are those three things to use it for.

[00:21:19] Speaker 01:
And that's all.

[00:21:21] Speaker 01:
You don't hang something so that it lies.

[00:21:24] Speaker 01:
In these claims, it says that once hung, the flat back of the tote bag lies against the outside surface of the seat box of the golf cart.

[00:21:40] Speaker 01:
piece of cargo carrying equipment is now outside of the physical parameters of the golf cart.

[00:21:49] Speaker 01:
Very, very unusual.

[00:21:51] Speaker 01:
Non-intuitive when indeed all golf cart manufacturers make cargo carrying bins within the physical parameters of the golf cart behind the seats.

[00:22:05] Speaker 01:
I use it all the time.

[00:22:06] Speaker 03:
Reference Davis, though, also teaches the idea of

[00:22:10] Speaker 03:
attaching some kind of bag to the side of a golf cart?

[00:22:15] Speaker 01:
You know, I don't get that.

[00:22:16] Speaker 01:
Davis is all about an attachment that allows you to carry a certain mix of clubs, usually the putter and the wedge because he argues those are the ones who use the most, outside of and not necessarily upside down.

[00:22:33] Speaker 01:
the interior of the golf bag.

[00:22:38] Speaker 01:
It shows a shoulder strap, but nothing but a shoulder strap, and doesn't use the shoulder strap to attach

[00:22:44] Speaker 01:
the golf bag to a golf cart.

[00:22:48] Speaker 03:
The golf carts.

[00:23:04] Speaker 03:
including the golf bag, as you said, as well as a golf cart.

[00:23:09] Speaker 03:
And so that's a A598.

[00:23:12] Speaker 03:
Yeah, but think about it.

[00:23:13] Speaker 03:
So therefore, necessarily, if you imagine what that looks like, you're looking at a container, a bag, a mini bag for the putters to be attached to the side of the golf cart.

[00:23:28] Speaker 01:
But on the seat side of the cistangle, where the bottom of that bag would be on the ground?

[00:23:33] Speaker 03:
I'm just responding to your point, which was the novelty or alleged novelty of having some kind of bag hanging off the side of a golf cart.

[00:23:45] Speaker 03:
And Davis tells us that, well, at least to a certain degree, that was already known.

[00:23:50] Speaker 01:
I guess you could hang it there if you weren't planning on moving the golf cart, because again, the dimensions are such that the thing would be laying on the ground.

[00:23:57] Speaker 01:
You don't put stuff on the outside of the golf cart.

[00:24:02] Speaker 01:
One thing occurred to me in reviewing.

[00:24:05] Speaker 04:
You should wrap up, because you've gone well over.

[00:24:08] Speaker 01:
This is my wrap up.

[00:24:11] Speaker 01:
The job of the patent office examiner and the board who's going to review his work is like the referee in a football game, particularly whether or not a ball goes through the upright in the process of kicking a field goal.

[00:24:27] Speaker 01:
He's just a referee.

[00:24:29] Speaker 01:
The ball goes through the field, the uprights, or it doesn't.

[00:24:32] Speaker 01:
If it goes through, there's a score, and if it doesn't, there's no score.

[00:24:37] Speaker 01:
The examiner, and the board backed him up in this, didn't play that role of a referee.

[00:24:44] Speaker 01:
He adopted the role of being a member of the opposing team whose job was to block the kick.

[00:24:51] Speaker 01:
It's not the way a 103 analysis is supposed to work.

[00:24:55] Speaker 01:
And you gentlemen are the last best hope for Mrs. Ward.

[00:25:01] Speaker 01:
Fair treatment to her invention.

[00:25:05] Speaker 01:
Thank you.