[00:00:55] Speaker 01: Okay, the next argued case is number 18-2234, Vandenhoven horticultural against glass investment projects. [00:01:05] Speaker 01: Mr. Oliver, when you're ready. [00:01:32] Speaker 00: Good morning. [00:01:32] Speaker 00: May it please the court. [00:01:34] Speaker 00: The board's opinion provides an insoluble claim construction that fails to indicate the real scope of the claims. [00:01:41] Speaker 00: Furthermore, the decision fails to articulate a reasonable basis for finding that the prior art, particularly Reisinger, would fall outside of the scope of the claims. [00:01:49] Speaker 00: Indeed, if we look at the claim construction and the record, we'll find that the exact same structure can both fall within the claims and outside the claims, depending on nothing more than the label that happens to be assigned to that structure. [00:02:01] Speaker 03: But the claim refers to an end gable. [00:02:10] Speaker 03: Correct. [00:02:11] Speaker 03: And very close to the claims, the end of the written description, there is a distinction between a gabled end and pipes. [00:02:24] Speaker 03: And doesn't that distinguish Reisinger? [00:02:30] Speaker 00: No, Your Honor. [00:02:31] Speaker 03: Because pipes and ducting are equivalent, and Reisinger has ducting. [00:02:40] Speaker 03: So doesn't this classification itself indicate that, pretty much, that Reisinger is not, does not describe an end gable? [00:02:49] Speaker 00: Let me explain, Your Honor. [00:02:51] Speaker 00: We disagree with that. [00:02:51] Speaker 00: First of all, Risinger just discloses an enclosure. [00:02:55] Speaker 00: It's called by the party, by GIP and a Doct. [00:02:59] Speaker 00: But as we'll see, also called a chamber. [00:03:02] Speaker 00: So we have chamber falling within the claims and Doct allegedly falling outside the claims, even though they're used interchangeably. [00:03:08] Speaker 00: But to answer your specific question, Your Honor, with respect to that piping embodiment, [00:03:13] Speaker 00: That, first of all, was not addressed below. [00:03:16] Speaker 00: The parties did not discuss piping with respect to distinction. [00:03:19] Speaker 03: Yes, but we can read the specification. [00:03:21] Speaker 00: And I hope that you do, and I'll explain what to look for when you do. [00:03:24] Speaker 00: The board says because of the presence of the word piping there, that embodiment should be distinguished from an endgable. [00:03:31] Speaker 00: That does describe an embodiment that does not use an endgable, but not because of the presence of pipes. [00:03:37] Speaker 00: What an endgable is, as we'll discuss here today, is it's a chamber for mixing air. [00:03:42] Speaker 00: It mixes recirculated air, and it mixes ambient air for being blown into a greenhouse. [00:03:48] Speaker 00: In that piping embodiment, and the end gable is stated in claims is outside of the growing section. [00:03:54] Speaker 00: So it's this area outside of the growing section that mixes air. [00:03:57] Speaker 00: In the piping embodiment, instead of mixing the air outside of the growing section, we have a direct input of the ambient air into the fans. [00:04:05] Speaker 00: So it's blown directly into the growing chamber. [00:04:08] Speaker 00: The pipe provides the recirculated air directly into the fan, so it is blown into the growing section. [00:04:13] Speaker 04: And into the output side of the fan or the input side of the fan? [00:04:17] Speaker 00: The input side of the fan. [00:04:19] Speaker 04: So why isn't that little bit of space essentially serving the same function as some larger space? [00:04:29] Speaker 04: I thought that the key distinction was a difference in function that the pipes were putting the recirculating air onto the output side of the fan so that the fan would blow it and what's missing in that is some kind of area on the input side of the fan for mixing. [00:04:49] Speaker 00: To your point, it's not made clear, but what is made clear throughout the patent is that the fan is not part of the endgable. [00:04:58] Speaker 00: It is what takes the air from the endgable. [00:05:01] Speaker 00: So the endgable is some space before the fan that provides mixing. [00:05:05] Speaker 00: In one embodiment, an angle embodiment, there is that pre-mixed air. [00:05:09] Speaker 00: In the piping embodiment, it is not pre-mixed. [00:05:11] Speaker 00: It is simply separately blown into the growing section and allowed to mix the air. [00:05:16] Speaker 00: There's nothing about a pipe itself that makes that embodiment different. [00:05:19] Speaker 00: Only thing that makes that embodiment different is that there's no pre-mixing of air. [00:05:24] Speaker 04: Let me just try to say what's in my mind. [00:05:28] Speaker 04: If the pipe example had [00:05:33] Speaker 04: and put the recirculated air into the output side of the fan, then it seems to me it would be making a clear, easily understood functional distinction between the notion of gable and that. [00:05:47] Speaker 04: But as soon as you say that the pipe is putting the recirculated air onto the input side, right at that space, [00:05:55] Speaker 04: There is a mixing. [00:05:58] Speaker 04: So now I'm not sure what the distinction is that the patent is making when it says this is non-gabled. [00:06:06] Speaker 00: First of all, I don't know that it's clear, so I probably should not have jumped forward to say it's on the input side. [00:06:10] Speaker 00: But the patent makes clear that the endgable is before the fan. [00:06:15] Speaker 00: The fan, in your interpretation, Your Honor, the fan would have to be inside the endgable or part of the endgable. [00:06:21] Speaker 00: What the endgables describe in the specification is shown as being in advance of the fan, and I believe that might be indicated in the claims. [00:06:29] Speaker 00: The endgable and the fan are recited separately throughout the claims, I believe, and therefore the fan is not part of the endgable. [00:06:36] Speaker 00: Whether or not mixing might take place in the fan or not, it is not what is described as an endgable in the specification. [00:06:44] Speaker 00: Moreover, and I would like to direct this to an even more important point, the distinction that was made by the board with respect to Reisinger is that a space existed between what was alleged to be a chamber or a mixing area or a dock or whatever you might call it in Reisinger and the end of the greenhouse wall. [00:07:04] Speaker 00: So the claim construction itself made no adoption of this idea of spacing. [00:07:09] Speaker 00: Yet that's what the board seemed to rely on in saying Reisinger is not an endgable. [00:07:14] Speaker 00: But if they're going to implicitly, in their discussion of the prior art, rely on something that's not in the claim construction, then their application of claim construction is improper. [00:07:22] Speaker 00: And if they are implicitly adopting this idea that if a space exists, it is not an endgable, then they should have addressed the arguments below that that is an improper construction and that Reisinger would read on that in any event. [00:07:36] Speaker 00: To your point, Your Honor, with respect to Rising, there is at least one embodiment where there is no space, something the Board did not address in its final decision because it did not adopt a claim construction with regard to spacing. [00:07:49] Speaker 00: On this idea of whether or not there's a duct or a chamber because of whether or not a space exists or not, the idea that there cannot be a space between the end gable and the end of the greenhouse isn't even supported in the specification. [00:08:03] Speaker 00: If we were to look [00:08:06] Speaker 00: In the specification at appendix 25, figure 2, the N-gable wall is not the outermost structure of the greenhouse. [00:08:15] Speaker 00: There is a space between the N-gable wall 26 and the outside of the greenhouse, as you can see to another structure on the left. [00:08:22] Speaker 00: So the specification itself has exactly what Reisner has, a space between the N-gable and the outside wall. [00:08:29] Speaker 00: Если la Cámara está dependiendo sobre esta idea de que hay un espacio entre la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la Cámara, la C [00:08:59] Speaker 00: it wouldn't be proper to even redraft this claim to say there's no space, because if we look at it, what is described and shown in figure two of the patent, and the other figures, figure five as well, is that there is a space between what the patent calls an end gable, between the wall 26 or 66, depending on what structure you're looking at, and the outside. [00:09:20] Speaker 00: So if the patent describes a space, and the prior art describes a space, how can we distinguish the prior art because it has a space? [00:09:28] Speaker 00: While at the same time, the board's saying it's not adopting the construction of space. [00:09:33] Speaker 00: What we have here is construction that says we're not going to look at the spacing issue, we're just going to say it's a duct, not a chamber. [00:09:40] Speaker 00: In that regard, the PISH, Reisner just says it's an enclosure. [00:09:45] Speaker 00: The petition said Reisinger has a chamber in the Appendix 666. [00:09:49] Speaker 00: GIP agreed that Reisinger had a mixing chamber. [00:09:53] Speaker 00: Specifically, GIP said that Reisinger has, and I quote, duck that forms the mixing chamber at the Appendix at 298. [00:10:02] Speaker 00: And on that same page, referred to it as the Reisinger mixing chamber. [00:10:06] Speaker 00: If Reisinger is both a duct and a chamber, and the claim construction says that a duct falls outside the claim and a chamber falls inside the claim, that would mean Reisinger both falls outside of the claim and inside the claim only depending on what part of the admission of GIT you read. [00:10:23] Speaker 00: Is it a duct? [00:10:24] Speaker 00: Is it a chamber? [00:10:27] Speaker 00: It also says that it could be a plenum. [00:10:29] Speaker 00: But the only definition of record in the specification of what a plenum is states, and I quote, an air-filled space in a structure. [00:10:38] Speaker 00: And that's in the appendix at 3039 through 3042. [00:10:42] Speaker 00: So the board's construction says a duct can't fall within the claims and a plenum or chamber filled with air can. [00:10:48] Speaker 00: But if a plenum is just a space filled with air and a duct's a space filled with air, how do we know what the difference is between what one falls in and what falls out of the claim construction? [00:10:58] Speaker 00: If a chamber is just an air-filled space, and it's admitted that it has a chamber, how can it fall outside of the claims? [00:11:05] Speaker 00: If the question is one of spacing, how can we read spacing into the claims when the spacing issue does not exist at all in the patent? [00:11:13] Speaker 00: This is the knot that has been created by the claim construction below, and this is what we're asking for assistance with on appeal. [00:11:20] Speaker 00: We don't know how to distinguish between what falls within the claims and what falls out of the claims. [00:11:26] Speaker 00: Why is Reisinger different? [00:11:28] Speaker 00: Reisinger doesn't say it's a duct, it just says it's a closure. [00:11:31] Speaker 00: Does it mix air? [00:11:33] Speaker 00: It's agreed, yes it does. [00:11:34] Speaker 00: Does it have the required vents? [00:11:36] Speaker 00: It does. [00:11:37] Speaker 00: Does it have the required louvers? [00:11:39] Speaker 00: Yes it does. [00:11:40] Speaker 00: So the question becomes what makes it different? [00:11:43] Speaker 00: If it's not the spacing, [00:11:45] Speaker 00: If it's not the term Dr. Plymer Chamber, because they're used interchangeably, there is simply nothing for us to find with respect to this that would tell us why, structurally, not with just what label you have to choose. [00:12:00] Speaker 00: In that regard, too, if, as the board argues, there's this spacing issue, it was argued below that, as admitted by GIP, there were versions of Reisinger relied upon in the petition that also had no spacing. [00:12:15] Speaker 00: Specifically, in the appendix at 414 through 415, a drawing of one of Reisinger's embodiments was provided by GIP. [00:12:27] Speaker 00: It showed a small greenhouse within a larger structure. [00:12:33] Speaker 00: Van der Hoeven established, through the marked up color version, that even in that admitted structure, the no space or no duct would still be met by Reisinger. [00:12:45] Speaker 00: And looking at 415 of the appendix, there is what is an end gable, a mixing chamber. [00:12:51] Speaker 00: It is not spaced from the yellow greenhouse wall. [00:12:54] Speaker 00: It is coplanar with it. [00:12:56] Speaker 00: So if the board was adopting this idea that spacing makes a difference, why didn't it consider the embodiments of rising relied upon whether it is no spacing? [00:13:05] Speaker 00: These are things that are simply not clear from the record below. [00:13:09] Speaker 00: We're not clear on exactly what the claim construction is because the board says we're not going to tell you exactly what it is other than it's not a dot. [00:13:16] Speaker 00: We're not going to adopt either Vanderhoeven's proposed claim construction or GIP's proposed claim construction. [00:13:23] Speaker 00: GIP's proposed claim construction require the spacing issue that there be no space. [00:13:28] Speaker 00: Well, if that's not being adopted, why is it being used to distinguish the prior art? [00:13:32] Speaker 04: Can I ask you what role does the Landstrom prior art play in this proceeding at this stage where I gather there's no longer a [00:13:41] Speaker 04: the dispute over the proposition that the claims do not require a particular roof shape. [00:13:49] Speaker 00: Well, with respect to that, regardless of whether it was a roof shape, one of the grounds was the proposal of combining land streams and gable for some of the claims. [00:13:56] Speaker 00: for all of all yes and particularly what was said was and what what does landstrom bring to the table as an alternative to what's landstrom was originally relied upon because of the roof shit right this whole idea of spacing wasn't [00:14:12] Speaker 00: of the original case because it's not even shown in the patent. [00:14:15] Speaker 00: So there's no reason to argue the spacing issue where there's a space in the patent itself. [00:14:19] Speaker 00: With respect to that, regardless of why we argued to include landstrom, we did it because of the roof shape, just in case that was an issue. [00:14:28] Speaker 00: But even putting that aside, the reason for the combination is the material as long as it's a proper combination. [00:14:33] Speaker 00: And if you look at landstrom, there is no space between its end gable. [00:14:38] Speaker 00: its area at the end of the greenhouse and the outside well of the greenhouse. [00:14:42] Speaker 04: So that if no space is required... [00:14:45] Speaker 04: Then Landstrom, you think, solves that problem. [00:14:48] Speaker 00: Landstrom solves that problem, and the admitted abodiments in Risinger solve that problem as well. [00:14:54] Speaker 00: And for that reason, regardless of whether we propose the combination based on the roof space or not, we said you could include the vents and chambers in Landstrom or at Landstrom's and Gable in the Risinger rockets. [00:15:10] Speaker 00: With that, I'd like to reserve the rest of my time. [00:15:24] Speaker 02: Good morning, Your Honor. [00:15:27] Speaker 02: May it please the Court. [00:15:29] Speaker 02: The invention disclosed in the 617 patent is a climate control system that has three modes of delivery of air to a greenhouse growing section where you can bring in from the outside cool air. [00:15:41] Speaker 02: From the inside you can recycle the warm air or you can have a mixture between the two. [00:15:46] Speaker 02: The preferred embodiment for this control system is an end gable which resembles a corridor at the end of a greenhouse formed by the structure of the greenhouse that has vents and louvers that control the flow of air in and out of that corridor. [00:16:01] Speaker 02: End gable is not a term of art, it has no ordinary meaning, so the board properly turned to this patent specification to ascertain its meaning. [00:16:09] Speaker 02: And they found an embodiment [00:16:11] Speaker 02: and relied on an embodiment that says the invention was arranged without an end gable using pipes for an air passageway. [00:16:19] Speaker 04: The board found that piping, as taught in the 617 patent... Does that example, which is on column 9, ever say that the pipes that are bringing the recirculated air get mixed with the ambient [00:16:34] Speaker 02: Well, as you just discussed with the housing council, that is unclear. [00:16:42] Speaker 04: But what happened below... Well, I was focused on something that I perhaps should not have been, which is where the end of the pipe is, on the input end of the fan or the output end of the fan. [00:16:53] Speaker 04: Now I'm asking a slightly different question. [00:16:55] Speaker 04: Does the description of this non-gabled pipe embodiment ever say that you can use the pipe that's bringing the recirculated air and mix it with the ambient? [00:17:14] Speaker 04: Even if it's, even if the mixing occurs on the output end of the fan. [00:17:18] Speaker 02: It's not clear where the mixing occurs. [00:17:20] Speaker 04: Does it ever say use the recirculated air [00:17:27] Speaker 04: at any time, including a time when the louver to the outside, to the ambient air is open? [00:17:35] Speaker 04: Or is that embodiment understandable as describing use of a pipe for pure recirculation? [00:17:47] Speaker 02: It doesn't say either way, your honor. [00:17:50] Speaker 02: It indicates that the pipe is used to take air from the second vent down to the fan for the recycle piece, but it doesn't say what's happening in terms of mixing. [00:18:03] Speaker 02: The embodiment, the invention, is described as a climate control system that has those three functions. [00:18:14] Speaker 02: It's at the beginning of the patent, [00:18:17] Speaker 02: Appendix 30 in the summary of invention makes it clear that the invention is a climate control system that controls the environment with set growing region, forming ambient air from the outside into the growing section, recirculating in a combination. [00:18:40] Speaker 02: It says it over and over again. [00:18:42] Speaker 02: That's what the invention is. [00:18:44] Speaker 02: And it gives two embodiments. [00:18:45] Speaker 04: So your thought and I guess the board's thought is that the piping embodiment in the paragraph on column nine really needs to be read consistent with the purpose of the invention to include the combination piece of those one, two, three. [00:19:02] Speaker 04: And once you do that, then we're off to the races figuring out what the heck a pipe is, and it's something that includes a duct, but not a plenum or a chamber. [00:19:13] Speaker 02: I'll get to that in a moment, but you're absolutely correct on that. [00:19:16] Speaker 02: That's really the only basis for this kind of destruction. [00:19:21] Speaker 02: It's an embodiment of the invention, and that's what Column 9 is talking about, having these three functions. [00:19:29] Speaker 02: And then to the question about whether or not a pipe and a duct are the same thing. [00:19:32] Speaker 02: They clearly are. [00:19:33] Speaker 02: In this context, it's not the word pipe generally, but it's pipes for airflow. [00:19:39] Speaker 02: It's pipes for an air passageway. [00:19:41] Speaker 02: And there's no distinction between a pipe and a duct in that context. [00:19:44] Speaker 02: These are terms that have ordinary meaning that a lay person has common meaning and commonly understood. [00:19:52] Speaker 02: Pipes and ducts. [00:19:53] Speaker 02: And they're synonymous. [00:19:54] Speaker 02: And they're used synonymously in the patent. [00:19:57] Speaker 03: And in contradistinction to Gable. [00:20:03] Speaker 04: Correct. [00:20:03] Speaker 04: Although I guess part of what I'm trying to isolate is when I hear the word Gable, I actually think of something that has an ordinary meaning but that you have disclaimed. [00:20:14] Speaker 04: There is no ordinary meaning. [00:20:15] Speaker 04: It doesn't have to look like this. [00:20:17] Speaker 04: It's not a big room. [00:20:19] Speaker 04: It can be a small box. [00:20:21] Speaker 04: And now I've completely lost any common sense meaning of the term gable. [00:20:26] Speaker 04: And now I don't know what to do to fill in what has just turned in my mind into a nonce word until something in the spec tells me otherwise. [00:20:37] Speaker 04: But you've told me, don't think about the seven gables. [00:20:42] Speaker 04: Think about something else. [00:20:45] Speaker 02: Gable, below, was the corridor at the end, as described in the two embodiments. [00:20:51] Speaker 02: It's the corridor at the end of the greenhouse, bounded by the outside greenhouse wall on one side, and a partition on the other side. [00:21:01] Speaker 02: That was our construction. [00:21:03] Speaker 02: But the issue the whole time between the parties was whether or not the end Gable included a duct, and whether or not Reisinger disclosed a duct. [00:21:13] Speaker 02: The reason the board found, once you, the board found, based on the piping embodiment and the description of what the invention is, that a duct was being, pipe was being excluded. [00:21:29] Speaker 04: Tell me what the difference is between a duct and a small three-dimensional area through which air is moving. [00:21:41] Speaker 04: Which I take it is what you think a gable is. [00:21:44] Speaker 02: I think the end gable is a large structure. [00:21:48] Speaker 04: Where's there something about size in this? [00:21:51] Speaker 02: Just looking at the figures of the patent relative to the size of the greenhouse. [00:21:55] Speaker 04: If you look at, for example... I'm sorry, was part of... I don't remember the board saying anything about size, did it? [00:22:01] Speaker 02: No, it's just distinguishing between a duct and... The board says a duct, you know, that one skill in the art knows what a duct is. [00:22:09] Speaker 02: based on the evidence and noted that reading her was not a duck and the reason that the board found that the reasons if I remember the reason your passageway let's just call it a passageway is not small. [00:22:34] Speaker 02: Is it? [00:22:36] Speaker 02: Yes. [00:22:36] Speaker 04: Isn't it to come down like this and then go all the way down the side? [00:22:41] Speaker 02: Well, it's on a relative scale, your honor. [00:22:44] Speaker 02: Well, I know it's small in the drawing, that's not what I meant. [00:22:49] Speaker 02: No, no, I mean it's small relative to the end gable in the 617 patent. [00:22:58] Speaker 02: And the reason the board found that [00:23:03] Speaker 02: Duct is a pipe, they're synonymous terms, and that the appellant, van der Hoeven, failed to rebut the evidence that the patent owner brought, showing that Riesinger was limited to ducks. [00:23:17] Speaker 02: A complete failure of proof. [00:23:19] Speaker 02: They did not dispute it. [00:23:20] Speaker 02: They said, you know, Riesinger does not mandate a duck. [00:23:23] Speaker 02: You know, Riesinger could be interpreted to be something other than a duck, but Riesinger only teaches ducks. [00:23:28] Speaker 02: And if an end gable does not include a duck, [00:23:31] Speaker 02: that Riesinger does not render obviousness. [00:23:35] Speaker 02: Now with respect to the greenhouse and the greenhouse argument that they've made, that was a classic new argument on rebuttal. [00:23:41] Speaker 02: They converted their argument from an obviousness argument in the petition to an anticipation argument on rebuttal, which is a new argument on rebuttal. [00:23:51] Speaker 02: And the board properly did not consider it and put it into their opinion. [00:24:16] Speaker 02: we heard a lot of talk about the spacing issue. [00:24:20] Speaker 02: Spacing issue is important for a couple of reasons. [00:24:23] Speaker 02: One, it makes it clear that Riesinger is a duct. [00:24:26] Speaker 02: Two, it fails to meet our definition of what an end gable is, and it fails to meet their definition of what an end gable is because they require the end gable to be at the end wall, and if it's spaced apart from the end wall, it's not at the end wall. [00:24:45] Speaker 04: What do you mean by at the end? [00:24:48] Speaker 04: Well, I guess I took it that the dispute was something like one surface that forms the gable has to be coincident with the greenhouse, a greenhouse wall. [00:25:03] Speaker 04: That was our argument. [00:25:04] Speaker 04: Why would you expect that to be the case? [00:25:07] Speaker 04: Why wouldn't you have, couldn't you have essentially a, let's call it a pipe [00:25:12] Speaker 04: From the outside louver that brings you into the chamber where this nice mixing is going to occur. [00:25:20] Speaker 02: Why can't you have a duct that is the vent? [00:25:22] Speaker 04: No, no, the chamber is still the chambers there. [00:25:25] Speaker 02: Now you have a duct that's that's become the vent, right? [00:25:28] Speaker 04: Yeah, you know, like my dryer vent. [00:25:30] Speaker 02: Because the the patent makes clear that that piping is not part of the end game. [00:25:34] Speaker 04: Well, that's that's not the piping. [00:25:35] Speaker 04: The piping that the patent is talking about is piping from that inside wall up in that little [00:25:42] Speaker 04: That's true. [00:25:43] Speaker 04: The northeast corner of the drawing, where the recirculating air comes back in, is going to head back to the fan. [00:25:51] Speaker 04: There's no discussion of piping from the outside into the chamber. [00:25:56] Speaker 02: You're right, Robert. [00:25:57] Speaker 02: Why is that excluded? [00:25:58] Speaker 02: I think because if you accept the definition of end gable as not including a duct, it would be argued that that is a duct and that is outside the scope of end gable. [00:26:15] Speaker 02: One thing I want to point out, the spacing issue. [00:26:17] Speaker 02: There's an argument that was presented today that if we look at the first few examples of the patent, for example, Appendix 25, Figures 1 and 2, that the outside gable wall 26 is not the outside wall. [00:26:33] Speaker 02: That's incorrect. [00:26:34] Speaker 02: What you're seeing to the left of it, which is being argued as a spacing issue, is a gutter. [00:26:45] Speaker 02: So there is no space to part issue in that context. [00:26:49] Speaker 02: And we'll probably hear about the drawing areas, but there was a drawing error that everybody recognized and the board recognized with respect to the petition that was corrected in the patent owner's response. [00:27:17] Speaker 04: A good bit of the theme that I think Mr. Oliver stressed was, how is somebody supposed to tell what's allowed and what's not allowed? [00:27:32] Speaker 04: If you're the lawyer for somebody other than this patentee, what do you tell somebody who's building a greenhouse about, and they want to mix some air? [00:27:44] Speaker 04: What do you tell them about what they can do and not do without offending this patent? [00:27:50] Speaker 02: If you use Duckwork, you're good to go. [00:27:56] Speaker 02: Smallish Duckwork. [00:27:59] Speaker 02: The issue of scale is kind of a red herring, Your Honor. [00:28:03] Speaker 02: Mission impossible. [00:28:04] Speaker 02: I would say the issue of scale is a red herring. [00:28:07] Speaker 02: If you look at the testimony, a duck and a plenum are words that have meaning to one of ordinary skill in the art. [00:28:13] Speaker 02: And like anything, we can scale things and they have different meaning. [00:28:17] Speaker 02: You know, not different meaning, but we can scale things up to argue, oh, if this is bigger than this, is it the same? [00:28:24] Speaker 02: That's the argument that they're making. [00:28:27] Speaker 02: Mr. Turkowitz explained very clearly that there are two things that differentiate plenums and ducts. [00:28:33] Speaker 02: One is the air velocity. [00:28:35] Speaker 02: Ducts are going to be smaller because the air velocity has to go through it to move into the growing section. [00:28:41] Speaker 02: That's one piece. [00:28:42] Speaker 02: The second piece, the plenum, which is the distribution chamber, has to be bigger than the duct. [00:28:47] Speaker 02: And there's a formula for that, a rule of thumb formula, that the area ratio is two and a half to three times [00:28:54] Speaker 02: the plenum versus the sum of the lateral ducts. [00:28:58] Speaker 02: Makes sense, because the plenum's a big, you know, big area where air is mixing, and then the fans are pushing it through those lines, and you need to have that velocity to make it move, and you need to have that big area. [00:29:10] Speaker 02: Otherwise, it's not a plenum, and, you know, that's not a plenum. [00:29:16] Speaker 02: It's too small. [00:29:18] Speaker 02: But it's size relative to the structures. [00:29:21] Speaker 02: It's not size in the abstract. [00:29:31] Speaker 02: The last thing I want to address is the obviousness issue. [00:29:34] Speaker 02: You were asking about Landstrom. [00:29:36] Speaker 02: The second reference. [00:29:37] Speaker 02: Right. [00:29:38] Speaker 02: So Landstrom originally was cited for the purpose of the pitched end gable and there is no evidence of a motivation to combine. [00:29:48] Speaker 02: They've argued a lot of things. [00:29:49] Speaker 02: Well, first thing I forgot to mention was it was a conditional obviousness argument saying if the patent owner construes the term end gable to mean a pitched gable, [00:30:01] Speaker 02: Then you look to this combination. [00:30:03] Speaker 02: And what varied within the argument was the idea that we could take the Chamber of Landstrom and combine it with Riesinger, but there's no explanation as to how you could do it. [00:30:14] Speaker 02: And when you look at what they argued for the purpose of obviousness, [00:30:18] Speaker 02: They argued that you could do it, it's in the same field, and there's a reasonable expectation it would work, and it wouldn't change the operation, but there's no explanation why there would be a motivation of one of skill and the art to make the combination, and that's required. [00:30:35] Speaker 02: The reasons I've indicated today, the board's decision should be affirmed. [00:30:41] Speaker 02: Do you have any more questions? [00:30:45] Speaker 01: I see you're out of time. [00:30:45] Speaker 01: Okay, thank you. [00:30:50] Speaker 01: Большое спасибо. [00:30:55] Speaker 00: Я бы хотел поделить несколько ошибок в рекорде и поделить несколько вещей. [00:31:00] Speaker 00: Во-первых, воздушная скорость не дискурирована ни где в патенте в связи с дистинуцией и оборудованием в любом другом. [00:31:08] Speaker 00: И в факте, как дискурировано в нашу открытную публику в 42, [00:31:13] Speaker 00: A G.I.P.' [00:31:14] Speaker 00: 's own expert, Mr. Turkelwich, established or ultimately admitted that air velocity doesn't make a difference. [00:31:20] Speaker 00: With respect to there being a difference in size, Dr. Turkelwich or Mr. Turkelwich was asked about this during his deposition. [00:31:27] Speaker 00: He originally said, well, maybe a planet is large compared to a duck. [00:31:31] Speaker 00: But he also admitted, and I quote, there is nothing there which mandates a particular size in claim one. [00:31:37] Speaker 00: That's in the appendix of 1638. [00:31:40] Speaker 00: He also admitted that a duct and a plenum could be the exact same size and shape, and he said that they would still be different to him. [00:31:47] Speaker 00: That's in the appendix at 1761 through 1764 and 1834. [00:31:53] Speaker 00: When ultimately pushed as to how do we know what the difference is between a duct and a plenum, he retreated to a mantra of a duct is a duct and a plenum is a plenum and that's all you need to know. [00:32:04] Speaker 00: He wouldn't tell us about the air velocity, although he started to, and then he said it wouldn't matter. [00:32:10] Speaker 00: He said they could be the exact same size. [00:32:12] Speaker 00: If you look in the brief at the PENEC 1761, 1765, 1834, and you can figure out what the difference is between a duct and a plenum, then you have something on me, because I've been looking at this for a long time, and I can't figure that out. [00:32:26] Speaker 00: With respect to the argument that there is a spacing requirement, this is very important. [00:32:35] Speaker 00: G.I.P.' [00:32:36] Speaker 00: 's expert originally did this turn view called the axonometric view of the version in the patent. [00:32:48] Speaker 00: And if you look at that, it can be found in the appendix at 164. [00:32:54] Speaker 00: Their own expert's drawing shows the end gable spaced away from the wall. [00:33:00] Speaker 00: That there's a space in there just like Reisner. [00:33:03] Speaker 00: During the trial, they changed their minds and said, no, no, no. [00:33:06] Speaker 00: That's not the way it works. [00:33:08] Speaker 00: It's a gutter, which is what you just heard here. [00:33:10] Speaker 00: The problem with that is what the expert relied upon to change his mind from what he looked at in the patent and came to a conclusion, until when he also said it was a gutter, was a citation to after the filing date evidence. [00:33:24] Speaker 00: Specifically, he eventually saw the actual thing they built years after. [00:33:29] Speaker 00: A 2013 reference [00:33:31] Speaker 00: and this can be found in the record in our blue brief at 24 and 25 and in the appendix at 304 or 305. [00:33:39] Speaker 00: The thing that they offered as evidence to distinguish what is shown in the patent, meaning there's a space there, [00:33:46] Speaker 00: is a printed publication five years or six years after the filing date. [00:33:51] Speaker 00: So the question is, if their expert, when looking at the patent, thought there's a space there and only corrected himself once he saw evidence that could never have been viewed by a person of awareness of film and art, how can we use that to not only limit what's in the specification and say there's no space, but then read that into the claims? [00:34:12] Speaker 00: The board's claim construction doesn't even include the spacing, yet they seem to rely upon it. [00:34:16] Speaker 00: Yet nothing in the intrinsic record would suggest that there's spacing. [00:34:20] Speaker 00: If a duct in a planet can be the exact same size, the exact same dimensions, have the exact same air velocity, there is no way to figure out why one falls inside the claims and one falls outside the claims. [00:34:33] Speaker 00: And that's the problem with the decision below. [00:34:38] Speaker 01: OK. [00:34:38] Speaker 01: Thank you. [00:34:39] Speaker 01: Thank you both. [00:34:40] Speaker 01: Case is checked. [00:34:40] Speaker 01: I'll do sufficient.