[00:00:27] Speaker 04:
Our next case is Pandoit versus Corning Optical Communications, 2018-1999.

[00:00:32] Speaker 04:
Mr. Melinda, you have essentially a mathematical appeal.

[00:00:40] Speaker 01:
Yes, we do, Your Honor.

[00:00:43] Speaker 01:
I'd like to now turn to the 320 patent, which is even simpler and more obvious than the three patents we just dealt with.

[00:00:49] Speaker 01:
It also involves another instance in which Corning is trying to read limitations into its broad claims to preserve their validity.

[00:00:55] Speaker 01:
So that's, again, problematic.

[00:00:57] Speaker 01:
So the 320 patent is a case study in obviousness, rectangles within rectangles.

[00:01:02] Speaker 01:
At the request of its customers, Corning used standard prior parts and industry standards to assemble them like puzzle pieces, the epitome of KSR.

[00:01:10] Speaker 01:
In the course of not finding these claims unpatentable as obvious, the board committed two important errors.

[00:01:16] Speaker 02:
Well, is it the board that committed errors, or did you commit errors?

[00:01:20] Speaker 02:
I mean, the board made an express fact finding that your expert used the incorrect size and space requirements

[00:01:26] Speaker 02:
in his calculations.

[00:01:28] Speaker 02:
I mean, it was your burden, right?

[00:01:30] Speaker 01:
It is indeed our burden of showing invalidity, Your Honor, or unpatentability.

[00:01:34] Speaker 01:
But the reason why the board got it wrong was because what Dr. D'Cuseid has used was the FOCUS 10A standard, which is the cutouts used to place those adapters in place.

[00:01:44] Speaker 01:
And the reason why that was appropriate is because if we look at A1145 in the FOCUS standard, what it says is that the dimensions of the surfaces of the adapter that interface with the mounting panel

[00:01:56] Speaker 01:
are defined by the cutouts of the panel.

[00:01:58] Speaker 02:
So that's a fact finding that you want us to find to be clearly erroneous?

[00:02:01] Speaker 01:
We do believe they read the FOCUS XA document incorrectly, but not in complete context.

[00:02:06] Speaker 02:
But it was a fact finding that the board made, so we'd have to find it to be clearly erroneous.

[00:02:12] Speaker 01:
Lacking substantial evidence.

[00:02:15] Speaker 01:
And I think the second part of that is that, in addition, he did account for that.

[00:02:20] Speaker 01:
So either way, the board was incorrect, because

[00:02:23] Speaker 01:
Dr. Tikusetas took into account unclaimed adapter features such as mounting and finger accessibility, etc.

[00:02:30] Speaker 01:
So even if he used a standard that was incorrect in the board's view, it didn't matter because he specifically accounted for things like mounting and other things where you're getting access to the adapters, etc.

[00:02:43] Speaker 01:
None of which are claimed, by the way, which is really our lead argument here, which is that these are all features that are being read into the claims.

[00:02:49] Speaker 02:
And you're actually asking us to conduct a claim construction for the first time on appeal, aren't you?

[00:02:56] Speaker 01:
We're not, Your Honor, but this is an issue of claim construction, and the cases are clear on this.

[00:02:59] Speaker 02:
But there was no issue of claim construction presented below, was there?

[00:03:03] Speaker 01:
But the board's analysis raises that, because what happened here was that by reading limitations into the claims, by reference to Corning's embodiment,

[00:03:13] Speaker 01:
What the court did was effectively construe the claims to contain these limitations.

[00:03:18] Speaker 01:
And that's the problem.

[00:03:18] Speaker 01:
And then turn it back on us and say, well, you didn't satisfy these unclaimed limitations in your invalidity analysis, despite the fact that, actually, Dr. DiCusadis did.

[00:03:27] Speaker 01:
That's why when he did his analysis, which was almost exactly the same thing that inventor Staber did completely independently, he accounted for those features.

[00:03:36] Speaker 01:
And I guess I just would like to talk about that for a second, because that's a key issue with this appeal, that neither the board addressed or Corning and Corning never addressed in their briefing.

[00:03:47] Speaker 01:
The fact that the analysis that Dr. D.Q.

[00:03:49] Speaker 01:
said is used was the same as what the inventor did, and they did it completely independently, which underscores the obviousness of this.

[00:03:55] Speaker 02:
So didn't he concede that there would be lots of other factors that you might take into account and that he didn't take them into account?

[00:04:02] Speaker 01:
But he did take them into account.

[00:04:03] Speaker 01:
In fact, what he said was,

[00:04:04] Speaker 01:
that he was taking into it by removing the adapter, by first calculating a maximum number of adapters that would fit into this standardized use space, which is exactly what Mr. Staber did, the inventor.

[00:04:18] Speaker 01:
He then said, I'm going to remove a requisite number of adapters that, in my knowledge of one of skill, would be necessary to take care of everything else, the accessibility, and all these limitless, unclaimed adapter features that Corning raises.

[00:04:33] Speaker 01:
That's exactly what Mr. Staber did.

[00:04:35] Speaker 01:
In fact, if you compare their respective testimony, if you look at Staber at A2753 to 55 and compare that to DQ status at A1009 to 19, they did the same thing.

[00:04:48] Speaker 01:
First, Staber determined how many LC adapters would fit within a standard use space.

[00:04:53] Speaker 01:
And then secondly, Mr. Staber used his knowledge of one of skill to remove a certain number, to account for all of these unclaimed features, even though he didn't have to.

[00:05:01] Speaker 01:
That's exactly what Mr. Staber testified to.

[00:05:03] Speaker 01:
The only daylight between what they did is the fact that Mr. Staber used an actual LC adapter, and Dr. D.Q.

[00:05:12] Speaker 01:
Satis used the cutout that that adapter sits in.

[00:05:16] Speaker 02:
Right.

[00:05:16] Speaker 02:
So the board found that he used the wrong size.

[00:05:20] Speaker 01:
But what the board didn't account for next was the fact that he accounted for any material that could go around the rim of that, for example, or these other unclaimed adapter features.

[00:05:30] Speaker 01:
And there could be limitless unclaimed adapter features.

[00:05:32] Speaker 01:
And that's the problem here.

[00:05:35] Speaker 01:
So all that he, and basically when Dr. D. Cusatus was saying that he wasn't trying to design a full chassis, which I believe is what your question's directed to, what he was really saying is that he couldn't predict all of the various things he had to account for.

[00:05:47] Speaker 01:
And there are a lot of them.

[00:05:48] Speaker 01:
First, there are a myriad of unclaimed features.

[00:05:51] Speaker 01:
And second of all, there are actually claimed features he has to worry about.

[00:05:54] Speaker 01:
For example, what's the ratio of simplex adapters to duplex adapters?

[00:05:59] Speaker 01:
So depending upon that particular composition, he'll have to account for that.

[00:06:03] Speaker 01:
And that's exactly why he left adequate space.

[00:06:06] Speaker 01:
And in fact, he left plenty of adequate space.

[00:06:08] Speaker 01:
20% height and 25% width in the context of the first use space standard.

[00:06:16] Speaker 01:
And for the second one, it was 20% and 40%.

[00:06:19] Speaker 01:
So tons of space to account for all of these different features.

[00:06:22] Speaker 01:
So he did account for that, and the board didn't address it.

[00:06:25] Speaker 01:
And that's really a fundamental problem in the board's reasoning.

[00:06:28] Speaker 01:
Because this invention is incredibly obvious.

[00:06:31] Speaker 01:
And I think it's remarkable that Mr. Staber.

[00:06:32] Speaker 02:
Is that a new legal standard?

[00:06:34] Speaker 01:
Incredibly obvious?

[00:06:34] Speaker 01:
Incredibly obvious, yes.

[00:06:37] Speaker 01:
Mr. Staber did almost exactly the same thing as Dr. D.Q.

[00:06:40] Speaker 01:
Saidis independently.

[00:06:42] Speaker 01:
I've never seen that in a case before, where the inventor actually independently came up with what the expert did, I mean, vice versa.

[00:06:50] Speaker 01:
So I think that's the first thing.

[00:06:53] Speaker 01:
The second thing is that it's interesting to note that Corning actually never

[00:06:57] Speaker 01:
responds to the correctness of the calculation that Dr. DiCusatus came up with.

[00:07:02] Speaker 02:
But he even admitted that his calculation was purely random.

[00:07:06] Speaker 02:
He basically just said, I left randomly some space.

[00:07:10] Speaker 02:
And it could have even been enough space for even more than 50.

[00:07:12] Speaker 02:
I mean, how is that clear enough expert testimony to meet your firm?

[00:07:21] Speaker 01:
So Dr. DiCusatus' testimony spans 20 pages of analysis.

[00:07:25] Speaker 02:
Yeah, but Murray kept saying that he didn't do anything very precise.

[00:07:29] Speaker 01:
Oh, he did?

[00:07:29] Speaker 01:
Very precise.

[00:07:31] Speaker 01:
He showed all of his work with respect to how many adapters could fit in to that use base on a theoretical basis, which is what Mr. Staver said he did.

[00:07:39] Speaker 01:
And then he subtracted out an amount that the knowledge of one of skill and the art would determine is enough.

[00:07:44] Speaker 02:
Well, he didn't say it was an amount that one of skill and the art would determine.

[00:07:48] Speaker 02:
He said, I just left, I thought, enough of an amount.

[00:07:52] Speaker 02:
I mean, his testimony was very not precise.

[00:07:55] Speaker 01:
Well, to me, that's exactly the same thing.

[00:07:57] Speaker 01:
And that's what Mr. Staber.

[00:07:58] Speaker 01:
I apologize, Your Honor.

[00:07:59] Speaker 01:
Go ahead.

[00:07:59] Speaker 01:
That's what Mr. Staber testified to, though.

[00:08:01] Speaker 01:
He said he removed some as well.

[00:08:04] Speaker 02:
But the question is, what does the patent show?

[00:08:09] Speaker 01:
OK.

[00:08:10] Speaker 02:
Oh, yeah.

[00:08:11] Speaker 02:
That's a question.

[00:08:12] Speaker 01:
OK.

[00:08:13] Speaker 01:
Well, it's interesting, because how do we know how they got to the various numbers that they recite in the claims?

[00:08:18] Speaker 01:
Good question.

[00:08:20] Speaker 01:
So I think the answer is, and how it helps us here, is that

[00:08:25] Speaker 01:
People of skill and the art do these sorts of calculations and make judgment calls all the time.

[00:08:30] Speaker 01:
And I think that this patent supports that.

[00:08:33] Speaker 01:
And in fact, when the invention is incredibly obvious, this court's precedent is clear that the expert does not have to spell out every single detail, especially with respect to this point, when it's clear that the knowledge of one of skill is what's at issue here.

[00:08:51] Speaker 01:
And we cited a litany of cases for that proposition.

[00:08:54] Speaker 01:
So the board was erred in rejecting his testimony as conclusively on this particular point.

[00:08:59] Speaker 01:
And the case law backs that up, especially when dealing with simple inventions where common sense shouldn't be left at the door.

[00:09:08] Speaker 01:
But just to reiterate, at no point does Corning actually challenge the end result of these calculations, that the gross amount of use space left over for all of these unclaimed adapter features was actually enough.

[00:09:22] Speaker 01:
So under a drinkware, that kills them.

[00:09:24] Speaker 02:
Because they should have responded by saying- The board expressly said that it gave his testimony minimal weight because it found it to be so sloppy.

[00:09:31] Speaker 02:
I mean, I don't know how we get around that.

[00:09:34] Speaker 01:
Well, the way you get around it is, first of all, they should not have been making all these requirements relating to finger access.

[00:09:39] Speaker 01:
That appears nowhere in the claims.

[00:09:41] Speaker 01:
Or mounting requirements, nowhere in the claims.

[00:09:43] Speaker 01:
It goes on and on, all of these different features that are read in.

[00:09:46] Speaker 01:
So I think that's the first step.

[00:09:47] Speaker 01:
And that's a purely legal question.

[00:09:50] Speaker 01:
So that's one way around it.

[00:09:51] Speaker 01:
I think the second way around it is the fact that Dr. Dicuceda did account for these features, even though he didn't have to.

[00:09:57] Speaker 02:
But there was evidence that one of skill and the art would consider accessibility, right?

[00:10:04] Speaker 01:
That they might, but that wasn't what was claimed.

[00:10:07] Speaker 01:
We have a very simple claim here.

[00:10:08] Speaker 01:
It's only three limitations, two of which are disclosed in the Wheeler reference.

[00:10:11] Speaker 01:
No one can test that.

[00:10:12] Speaker 02:
But if one of skill and the art would, in connection with these claims, consider issues of accessibility, then why?

[00:10:17] Speaker 02:
And the board made that finding.

[00:10:19] Speaker 02:
Why do we ignore that?

[00:10:20] Speaker 01:
Because I think we have to go back to the fact that they're not claimed.

[00:10:23] Speaker 01:
But even if we should take them into account, Dr. D. Q. Satis did.

[00:10:29] Speaker 01:
And that's what the board didn't address.

[00:10:31] Speaker 01:
The board doesn't address the fact that he took that into account.

[00:10:34] Speaker 01:
I mean, look how much use space was left.

[00:10:37] Speaker 01:
We do the calculations in our brief, which are based on Dr. D. Q. Satis'.

[00:10:40] Speaker 01:
In one case, it's 40% width and 20% height.

[00:10:44] Speaker 01:
That's how much space was left over to take care of all of these things.

[00:10:47] Speaker 01:
And that's really part of the problem here is that, where do you stop?

[00:10:50] Speaker 01:
Because there are so many unclaimed features and so many other future unclaimed features, it's hard to get a full understanding of what Dr. Dicusatus should have done when we're dealing with a moving target, which is, what are we reading into the claims and what shouldn't we be?

[00:11:11] Speaker 01:
So I'll reserve my remaining time for rebuttal if there are no further questions.

[00:11:15] Speaker 04:
We will hold it for you, Mr. Malenda.

[00:11:17] Speaker 04:
Thank you.

[00:11:28] Speaker 04:
Do you do the arithmetic differently?

[00:11:32] Speaker 00:
Thank you, Judge Laurie.

[00:11:32] Speaker 00:
May it please the court, John O'Quinn on behalf of Corning.

[00:11:36] Speaker 00:
Pandovich's approach to obviousness here suffers from at least two independent failures of proof, either of which require affirmance of the board's decision.

[00:11:44] Speaker 00:
First, its expert's analysis depends entirely on a misreading of the focus document, which the board rejected on the facts.

[00:11:52] Speaker 00:
And they don't even in their brief argue about why the board is wrong in its reading of the document.

[00:11:58] Speaker 00:
That means that Pandoit's expert consistently understated the size of adapters by equating them with the size of the mounting holes as opposed to the entire structure of the adapter.

[00:12:09] Speaker 00:
That measurement is the linchpin of their theory, and without which it simply has no evidence relating to the density limitation.

[00:12:17] Speaker 02:
How do you respond to the argument that he didn't do anything differently than the inventor did?

[00:12:22] Speaker 00:
Well, Judge O'Malley, I think that the testimony that he's referencing come up in very different contexts.

[00:12:27] Speaker 00:
One is the inventor telling you what he did without getting into all of the calculations that the inventor actually did, but walking through just as a general matter what his process was.

[00:12:38] Speaker 00:
The other is attempting to satisfy their burden of showing that a person of ordinary skill in the art would have found these density limitations to be obvious.

[00:12:51] Speaker 00:
And the board made factual findings, as Your Honor previously noted, about the things that the person of ordinary skill in the art would have considered.

[00:13:01] Speaker 00:
And of course, one of the things that a person of ordinary skill in the art would have considered

[00:13:04] Speaker 00:
was the actual size of the adapters as opposed to the size of the hole, which consistently understates the measurement that their expert did.

[00:13:14] Speaker 00:
And so I think that those factual findings by the board compel affirmance.

[00:13:18] Speaker 00:
Now, I think what it's telling is that in their reply brief, and again today here at oral argument, Pandoit attempts to shift the burden of proof to Corning.

[00:13:28] Speaker 00:
citing this court's decision in dynamic drinkware.

[00:13:31] Speaker 00:
And that's an astonishing proposition because this court in Magnum Oil specifically addressed this very issue and said, quote, no burden shifts from the patent challenger to the patentee.

[00:13:43] Speaker 00:
That is especially true where the only issues to be considered are

[00:13:47] Speaker 00:
what the art discloses, whether there would have been a motivation to combine the prior art, and whether that combination would render the patent claim obvious.

[00:13:55] Speaker 00:
And this court in Magnum Oil specifically addresses and distinguishes dynamic drinkware, explaining, no, no, that's dealing with the situation where the patent owner is attempting to swear behind.

[00:14:06] Speaker 00:
And there, the patent owner has a burden.

[00:14:09] Speaker 00:
But that's not true in terms of obviousness.

[00:14:12] Speaker 00:
And the argument that the Pantawood is relying on

[00:14:15] Speaker 00:
is inconsistent with magnum oil and it's inconsistent with cyclobenzaprine.

[00:14:21] Speaker 00:
They also attempt to manufacture a contrived claim construction argument for this appeal to avoid substantial evidence review precisely because they know that they cannot overcome the board's factual findings.

[00:14:36] Speaker 00:
And there was no interpretive dispute before the board, and there is no interpretive dispute on appeal here because

[00:14:44] Speaker 00:
This situation is exactly like what the court has encountered in a number of other contexts.

[00:14:49] Speaker 00:
The board can consider what would actually motivate a person of ordinary skill in the art.

[00:14:55] Speaker 00:
And it's not just simply to determine what is feasible.

[00:14:59] Speaker 00:
They have to be motivated to want to combine the prior art to make something that is desirable.

[00:15:06] Speaker 00:
As this court put it in Winner International versus Wang,

[00:15:11] Speaker 00:
And I think this court's decision in Apotex v. Wyeth captures it well.

[00:15:15] Speaker 00:
It said, quote, to the extent the board considered stability, which was not a limitation in the claims, but considered stability during its obviousness analysis generally, it did so in the context of assessing whether a skilled artisan would have been motivated to combine the references.

[00:15:31] Speaker 00:
That is not the same as importing a limitation into the claim, end quote.

[00:15:37] Speaker 00:
But yet, he's essentially arguing

[00:15:40] Speaker 00:
Well, that is importing a limitation into the claim.

[00:15:42] Speaker 00:
And just like in the pharmaceutical context, in deciding what would motivate a person of ordinary skill in the art to develop a particular drug, you will consider, well, is it going to be therapeutically effective?

[00:15:53] Speaker 00:
Will it be nontoxic?

[00:15:55] Speaker 00:
Those things don't have to be written into the claim in order for it to be legitimate for the fact finder to consider that that is what would motivate a person of ordinary skill in the art.

[00:16:04] Speaker 00:
And again, this court's decision in Institute Pasteur, I think, directly addresses that.

[00:16:09] Speaker 03:
I take it that your basic argument is that this is really a factual issue.

[00:16:15] Speaker 03:
And under our standard of review, there was substantial evidence in the record to support the board.

[00:16:21] Speaker 03:
Is that the case?

[00:16:22] Speaker 00:
Judge Player, you literally took the next words right out of my mouth.

[00:16:25] Speaker 00:
That's exactly what I was going to say.

[00:16:27] Speaker 00:
I didn't mean to do that.

[00:16:28] Speaker 00:
Well, I appreciate you doing it.

[00:16:30] Speaker 00:
It saves you time.

[00:16:32] Speaker 00:
It saves me time.

[00:16:33] Speaker 00:
And to that end, perhaps it saves you some time as well.

[00:16:36] Speaker 00:
That is the crux of our argument.

[00:16:39] Speaker 00:
I think this all does come down to factual findings by the board.

[00:16:44] Speaker 00:
And unless the court has questions about those, or further questions for me on any of the issues that have been raised, I'm not sure there's a lot more to be said.

[00:16:51] Speaker 00:
Because I don't think that there is a claim construction issue here that is presented at all.

[00:16:55] Speaker 00:
It's certainly not importing limitations.

[00:16:57] Speaker 00:
There is one thing more you could say is thank you.

[00:17:02] Speaker 00:
I will say that then.

[00:17:03] Speaker 00:
Then you can sit down.

[00:17:05] Speaker 00:
If there are no further questions from the rest of you, thank you all.

[00:17:09] Speaker 04:
No one ever loses points by surrendering time.

[00:17:11] Speaker 00:
Yes.

[00:17:14] Speaker 04:
Mr. Malender.

[00:17:26] Speaker 01:
Your Honor, just a couple of points to address with respect to a couple of things that were just raised.

[00:17:31] Speaker 01:
With respect to the drink query issue,

[00:17:33] Speaker 01:
We never said that the burden of persuasion rests with them.

[00:17:36] Speaker 01:
That rests with us as the challenger to the patent.

[00:17:39] Speaker 01:
The burden of production, however, does shift to them when we made our prima facie case of obviousness.

[00:17:44] Speaker 01:
And that's the issue here.

[00:17:45] Speaker 01:
They didn't respond to why the end result of our calculations was wrong.

[00:17:51] Speaker 01:
We've never seen that.

[00:17:53] Speaker 01:
And in fact, we still haven't heard why they're wrong.

[00:17:55] Speaker 01:
Why is that number at the end of the day wrong?

[00:17:58] Speaker 01:
The second thing, with respect to motivation, we have to remember.

[00:18:00] Speaker 01:
So they make an argument, basically,

[00:18:03] Speaker 01:
that all these unclaimed features go to the issue of motivation.

[00:18:07] Speaker 01:
Well, the problem with that is that the real issue about motivation had to do with increasing bandwidth.

[00:18:12] Speaker 01:
That's really the essence of what all these patents are about is the issue of increasing bandwidth and fiber optic density.

[00:18:18] Speaker 01:
And the issue of all of these unclaimed features, they're just not in the claims.

[00:18:23] Speaker 01:
So to shoehorn them in through the issue of motivation is just really a thinly veiled claim construction argument.

[00:18:31] Speaker 01:
So there are a number of different ways in which this court can reverse or, at a minimum, remand.

[00:18:37] Speaker 01:
First is with respect to the claim construction issue, which is a pure question of law.

[00:18:42] Speaker 01:
The second is that the board's decision holding Dr. DiCusata's analysis as conclusory was wrong, despite the fact that it spanned 20 pages and was almost identical to what their own inventor did, even though they did it completely independently, and that his analysis was consistent with the law.

[00:19:00] Speaker 01:
which is where you have a very obvious invention that's very simple.

[00:19:04] Speaker 01:
You don't have to say every single thing in your declaration, especially things that are known by one of ordinary skill in the art, like this particular issue of how much space to leave, which is exactly what Mr. Staber testified to.

[00:19:15] Speaker 01:
And then lastly, as I just said, Corning didn't satisfy its burden of production in coming back and saying, OK, this is why your end result is wrong.

[00:19:26] Speaker 01:
And we still haven't heard that today.

[00:19:28] Speaker 01:
So I think what this case boils down to is the application of very simple math using known standards and prior art.

[00:19:35] Speaker 01:
And for these reasons, we believe that we prevail and that this court should reverse or an alternative remand.

[00:19:40] Speaker 03:
Mr. Malenda, I'm struck by the fact that these two cases, these two matters that we've been hearing, have the same parties in them.

[00:19:55] Speaker 03:
and somewhat the same attorneys.

[00:19:58] Speaker 03:
And I'm struck by the fact that the board, the boards, or the board that decided all of these cases were the same board.

[00:20:08] Speaker 03:
It was the same board.

[00:20:11] Speaker 03:
And I'm struck.

[00:20:12] Speaker 03:
I realize we don't do justice up here.

[00:20:15] Speaker 03:
We do law.

[00:20:18] Speaker 03:
But I'm struck by the Solomonic character of these cases.

[00:20:26] Speaker 03:
The board gave Corning something.

[00:20:30] Speaker 03:
The board gave Bandoit something.

[00:20:36] Speaker 03:
A more solomonic result you couldn't ask for.

[00:20:40] Speaker 03:
I'm not suggesting you're being ungrateful for what the board did for you, but I was struck by this.

[00:20:48] Speaker 03:
It's an interesting

[00:20:51] Speaker 03:
situation, although, of course, it doesn't influence us because we don't do justice.

[00:20:57] Speaker 01:
Actually, Your Honor, we found the whole thing rather inexplicable because there are a series of these inventions and a series of appeals relating to this exact same technology in which the board held that the claims were unpatentable.

[00:21:06] Speaker 01:
And in fact, there are five appeals for which all relate to findings of obviousness or anticipation.

[00:21:14] Speaker 01:
So we think this is really the outlier.

[00:21:16] Speaker 01:
And this should fall in line with all of those other cases because, frankly, all of this technology at its core

[00:21:21] Speaker 01:
would have been very obvious.

[00:21:23] Speaker 01:
And in fact, this is really the poster child.

[00:21:24] Speaker 02:
Maybe the problem is you just treated it like an outlier because you thought it was going to be an easy case and you didn't you didn't prove it.

[00:21:31] Speaker 01:
I don't believe so, Your Honor, because I think what Dr. D.Q.

[00:21:34] Speaker 01:
Sadis did over the course of 20 pages was give a very robust explanation.

[00:21:38] Speaker 01:
The thing that the board is faulting us for was not giving more detail on this particular point of how much space is left, but

[00:21:46] Speaker 01:
People of skill and the art in this area, maybe because the technology is relatively straightforward, they don't really explain that.

[00:21:53] Speaker 01:
And in fact, the determination.

[00:21:54] Speaker 02:
Well, there was an expert on the other side.

[00:21:55] Speaker 01:
I'm sorry?

[00:21:56] Speaker 02:
There was another expert.

[00:21:57] Speaker 01:
There was, Mr. Pearson.

[00:21:58] Speaker 02:
One that the board found more credible.

[00:22:00] Speaker 01:
And actually, what happened in that case was that Mr. Pearson never challenged that result.

[00:22:05] Speaker 01:
He took potshots about the unclaimed features, but not about the actual result.

[00:22:11] Speaker 01:
And that's what's really bizarre about this, is that the burden of production should have shifted at that point.

[00:22:16] Speaker 04:
Thank you, Mr. Malinda.

[00:22:18] Speaker 04:
The case is submitted.