[00:00:00] Speaker 02:
BestWayUSA is versus Intex Marketing Limited, Mr. Arts.

[00:00:20] Speaker 03:
Good morning, Your Honors.

[00:00:21] Speaker 03:
May it please the Court?

[00:00:23] Speaker 03:
On BestWay's portion of the appeal, we're going to be addressing two issues.

[00:00:26] Speaker 03:
First, that the Board incorrectly failed to consider

[00:00:30] Speaker 03:
the merits of ground two presented in the petition by engaging in a form over substance analysis by focusing on the headings of the petition instead of the language and arguments in the petition.

[00:00:42] Speaker 03:
and other papers presented before the board.

[00:00:44] Speaker 03:
Secondly, on the merits, the board erred and adopted its own unsupported claim constructions and ignored the undisputed evidence of Bestways expert Dr. Sade to arrive at conclusions on motivation to combine that were not supported by substantial evidence, particularly when the references presented interchangeable design choices.

[00:01:08] Speaker 03:
So I'd like to focus first on the first issue.

[00:01:10] Speaker 03:
The petition clearly set forth alternative challenges to the claims and grounds to, as permitted by law.

[00:01:17] Speaker 03:
And this is the polygroup case, similar to that, where the board, this court, determined that the board erred in failing to consider alternative arguments explicitly presented in the petition.

[00:01:27] Speaker 03:
And here, the petition, with respect to claim 18,

[00:01:31] Speaker 03:
Makes clear that quote Peterson in view of firemen taught every limitation of claim 18 the petition then goes on to detail how Peterson Corresponds to the elements of claim 18 and after concluding again that a combination of Peterson and firemen teach all the limitations of claim 18 it presents the alternative argument that if Pat and owner were to argue that

[00:01:54] Speaker 03:
that Peterson didn't teach the top and bottom walls as required by the claims, those walls would be obvious in view of a combination.

[00:02:02] Speaker 00:
You're saying that's in your petition?

[00:02:04] Speaker 03:
That's in the petition, Your Honor.

[00:02:05] Speaker 00:
Tell me what page I should look at for that.

[00:02:23] Speaker 03:
Right under to it says Peterson dependent claim 18 Peterson in view of fireman taught every limitation of claim 18 for the following reasons I'm more interested in your alternative alternatively if Peterson's Doesn't teach the four-wall limitation.

[00:02:41] Speaker 03:
We rely on guan to teach the four-wall limitations Yep, correct that if you look at on page 48 to the extent this is the first full paragraph

[00:02:53] Speaker 03:
to the extent patent owner argues that the top wall and our bottom wall are not taught by Peterson in view of firemen, those features would have been obvious when combined with the teachings of Guam.

[00:03:04] Speaker 03:
And up above you see where this is the annotated figure presented by the expert.

[00:03:09] Speaker 03:
That's where they're showing that Peterson, which is a two wall structure, corresponds to the four walls claim limitation.

[00:03:17] Speaker 03:
But then it goes on with respect to Guam.

[00:03:19] Speaker 03:
After making that alternative argument, then on page

[00:03:23] Speaker 03:
49 of the petition, record 162, that Guam meets the four-wall limitation because it has top and bottom walls that are opaque, and then it has inner and outer walls that are formed of a transparent material.

[00:03:37] Speaker 03:
That's not disputed.

[00:03:39] Speaker 03:
There's no record evidence.

[00:03:41] Speaker 00:
What did the board say about that?

[00:03:42] Speaker 00:
The board said there was no motivation to combine, no discussion of why you would modify Peterson's

[00:03:51] Speaker 00:
you know, allegedly two separate wall construction to have separate material for the top and the bottom, right?

[00:03:59] Speaker 03:
That was the board's finding, Your Honor, correct.

[00:04:01] Speaker 03:
And that is an error.

[00:04:02] Speaker 03:
The substantial evidence doesn't support it.

[00:04:04] Speaker 02:
First of all, the... Could we just back up just one second so I understand where we are?

[00:04:11] Speaker 02:
Assuming that we accept your argument that these issues were properly raised.

[00:04:17] Speaker 02:
Yes.

[00:04:17] Speaker 02:
The separate combination of Peterson and Barman and then

[00:04:21] Speaker 02:
adding one as an alternative to that.

[00:04:23] Speaker 02:
Let's assume we agree with you.

[00:04:26] Speaker 02:
My understanding is the board still went on and rejected the arguments on the merits, and that's basically what we're talking about now, right?

[00:04:35] Speaker 03:
That's correct, Your Honor.

[00:04:36] Speaker 03:
The board did alternatively say to the extent that they were presented, and it went on to address the merits and find that

[00:04:45] Speaker 03:
The petition did not satisfy the burden required, and that's what we condemned and have argued is substantial error and not correct.

[00:04:53] Speaker 02:
What is it that you understand the board to have said in rejecting the Peterson-Farman combination that that was only two sheets as opposed to four sheets and that each wall has to be a separate sheet?

[00:05:07] Speaker 03:
The board wasn't really clear in its rationale, Your Honor.

[00:05:10] Speaker 03:
What the board said is that we didn't demonstrate that the prior art taught a proper construction of the claims.

[00:05:16] Speaker 03:
but that there was no construction offered, nor was there any evidence that the ordinary meaning or BRI of the word wall shouldn't apply.

[00:05:25] Speaker 03:
So while it said that we didn't present substantial evidence showing that Peterson met claim 18, that can only be based on a construction or inherent construction that adopted that said that each wall has to be its own separate sheet of material.

[00:05:41] Speaker 00:
And on appeal, you now dispute that construction, right?

[00:05:44] Speaker 03:
Well, the first time that the board made that statement, remember, Intex never presented any evidence.

[00:05:50] Speaker 00:
Neither party argued this.

[00:05:52] Speaker 00:
Neither party argued how these terms should be construed.

[00:05:54] Speaker 03:
Yes, Your Honor.

[00:05:55] Speaker 03:
And the issue of multiple pieces of material was never raised.

[00:05:59] Speaker 03:
Ironically, probably the only time it was raised was in our alternative statement in the petition.

[00:06:04] Speaker 03:
But the board did, we do challenge that that's incorrect if that's the answer to the question, Your Honor.

[00:06:10] Speaker 03:
Can you repeat the question again?

[00:06:11] Speaker 00:
Okay, you do challenge the board's claim construction.

[00:06:14] Speaker 03:
Yeah, to the extent that the board has inherently adopted a claim construction, we absolutely challenge it.

[00:06:19] Speaker 03:
Because certainly, as Dr. Sade said in his expert report and as submitted in the petition, two sheets of material in connection with the tensioning members, when inflated, will form four walls.

[00:06:31] Speaker 00:
And notably- Separate from that, I mean, we're not going to be looking at the priority to interpret the claims.

[00:06:36] Speaker 00:
We're going to be looking at the claim language itself, looking at the disclosure and the specification of the patent institute,

[00:06:44] Speaker 00:
So why is it that you think that the board's claim construction is incorrect?

[00:06:48] Speaker 00:
When it does say a top wall, a bottom wall, it has a side interior wall, exterior wall, and it talks about them cooperating with one another, which

[00:07:03] Speaker 03:
They cooperate to form the air chamber, but there's nothing in the specification that provides any intent, function, or purpose to the walls.

[00:07:11] Speaker 03:
The sole purpose of the walls is to define the boundary of the air chamber.

[00:07:15] Speaker 00:
Do you agree that the patent teaches two different embodiments, one of which has four walls and one of which has two?

[00:07:20] Speaker 00:
I mean, you might not take that characterization, but there are two different embodiments where there's two walls, where each wall is made of the same material, or there's four walls,

[00:07:30] Speaker 00:
each made of different material.

[00:07:33] Speaker 03:
The actual detailed description of the patent doesn't make any distinction about how many pieces of material are used to denote how many walls.

[00:07:42] Speaker 03:
What the two references that the board cited come from column two

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which is the summary, which is just purely a recitation of the claims.

[00:07:51] Speaker 03:
So the board is saying, because we interpreted the claims, the one that says inner and outer, that that has to be two sheets of material.

[00:08:00] Speaker 03:
The subsequent reference that says, I'm sorry, first and second, that's two sheets of material.

[00:08:05] Speaker 03:
The subsequent reference that says inner outer, top and bottom, that has to be four.

[00:08:10] Speaker 03:
So I disagree.

[00:08:11] Speaker 03:
I don't think that the patent specification

[00:08:13] Speaker 03:
explicitly defines multiple embodiments where the multiple embodiments show walls that have to be formed of multiple pieces of material.

[00:08:23] Speaker 02:
Claim one.

[00:08:24] Speaker 02:
That may be true in terms of what it explicitly teaches, but it does teach a two-wall embodiment, right, beginning in column two at line 40.

[00:08:35] Speaker 03:
That's what the board cited as being a two-wall embodiment, and it just talks about a first wall and a second wall defining the chamber.

[00:08:42] Speaker 03:
I don't think that that necessarily excludes that there can be other walls that define the chamber.

[00:08:48] Speaker 03:
But I don't know that it matters whether or not it's a two-wall or four-wall disclosed in the specification, because there's no purpose or function that's defined to the walls.

[00:09:00] Speaker 03:
The sole purpose that's

[00:09:01] Speaker 00:
So you have to have a purpose for a different embodiment in order to be able to claim just one embodiment?

[00:09:07] Speaker 03:
No, I'm saying there's no functional difference when you get to claim 18, Your Honor.

[00:09:11] Speaker 03:
The purpose of adding the two additional walls to define the chamber, at least with respect to the claim,

[00:09:17] Speaker 03:
Adding the directional requirement upper lower top and bottom front back is to define where the gaps are specified and claim 18 with respect to the tensioning member that the gap is between the upper surface of the tensioning member and the upper surface of the wall maybe or maybe it's to say that there's an actual top wall and there's a bottom wall and they cooperate with the inner and

[00:09:41] Speaker 00:
and outer walls.

[00:09:42] Speaker 03:
But I think that's, Your Honor, just assume that that's the case.

[00:09:45] Speaker 03:
That's inconsistent with the BRI of the term wall.

[00:09:49] Speaker 03:
And what I will cite to that is a deposition.

[00:09:52] Speaker 03:
In Texas, expert Mr. Kuchel was asked if he disagreed with Dr. Sade's interpretation and analysis that Peterson itself teaches the four walls.

[00:10:03] Speaker 03:
And he didn't dispute it.

[00:10:06] Speaker 00:
Oh, you're saying the opposing counsels.

[00:10:10] Speaker 03:
Opposings experts didn't dispute it.

[00:10:11] Speaker 03:
Not only did they not put out any evidence, when asked during deposition, he had no disagreement with the way Dr. Sadek corresponded claim 18.

[00:10:20] Speaker 00:
But he said, and I remember that testimony now you're referring to, he specifically said in that testimony, which I read,

[00:10:27] Speaker 00:
He said, yeah, I agree.

[00:10:28] Speaker 00:
That's how I understand it as he reads it, as the other expert reads it.

[00:10:33] Speaker 00:
He did have a qualifier in his admission.

[00:10:36] Speaker 00:
Did he not?

[00:10:37] Speaker 03:
Certainly, Your Honor, but given the opportunity, he didn't challenge it or dispute it.

[00:10:42] Speaker 03:
He didn't say, but I, this is how I think it should be.

[00:10:45] Speaker 03:
In Texas provided zero evidence.

[00:10:47] Speaker 03:
There's no challenge to claim 18.

[00:10:51] Speaker 03:
They haven't said,

[00:10:52] Speaker 03:
They haven't put forth any evidence outside of their petition.

[00:10:55] Speaker 00:
I understand, but this is a claim construction issue, right?

[00:10:58] Speaker 00:
It is a claim construction under BRI, you're right.

[00:11:01] Speaker 00:
And I go back to that.

[00:11:02] Speaker 00:
Or we go back and we look at the board's claim construction and determine whether we review it de novo unless there's fact findings, right?

[00:11:11] Speaker 03:
Yes, Your Honor.

[00:11:12] Speaker 03:
And when I say there's nothing even under a Phillips standard, if you're going to be excluding the ordinary meaning of the term wall, which isn't certainly limited based on the number of sheets of material that can be employed, there's no disclaimer.

[00:11:28] Speaker 03:
There's nothing in the specification or file history that would lead one to believe that a wall has to be formed of a separate sheet of material, and to the exclusion that a single sheet of material couldn't be used to form multiple walls.

[00:11:43] Speaker 02:
Before you sit down, spend a moment on the combination that adds Guan.

[00:11:49] Speaker 02:
Yes, your honor.

[00:11:50] Speaker 02:
My understanding is you're arguing that the board again made a mistake in characterizing what had been raised and that you did raise the design choice argument in the petition.

[00:12:02] Speaker 02:
Yes, your honor.

[00:12:04] Speaker 02:
And what they went on to say that just saying it's a design choice isn't sufficient.

[00:12:09] Speaker 02:
What's your answer to that?

[00:12:11] Speaker 03:
I think that there are sufficient rationale presented.

[00:12:14] Speaker 03:
And there's a separate motivation to combine that talks about the structures of Peterson and Guam being virtually interchangeable, because they're inflatable pool structures that have tensioning members.

[00:12:25] Speaker 03:
And as the board noted in the prior section with respect to dealing with claim one, it was a well-known desire to try to provide pools that were deeper, that had stronger walls.

[00:12:36] Speaker 03:
And that same motivation to combine sections

[00:12:38] Speaker 03:
talked about the benefits provided by Guan of structural stability and beautify its shape.

[00:12:45] Speaker 03:
And so the beautifying of the shape comes from the fact that it's got the four walls, the two that are opaque and the two that are translucent that allow you to see the colored spacing members within it.

[00:12:56] Speaker 03:
That would just be an obvious design choice to take the two walls of Peterson

[00:13:00] Speaker 03:
and make it such that they were opaque to provide aesthetics.

[00:13:04] Speaker 03:
There isn't any function to that.

[00:13:05] Speaker 03:
And with respect to the stability component, again, the stability allows for the function to make higher walls as a result of the tensioning members.

[00:13:14] Speaker 03:
And so being able to have deeper walls, which is something that the

[00:13:20] Speaker 03:
Guan says the multiple pieces allows, including allowing someone to sit on the edge of the pool to be able to watch children that are in it.

[00:13:30] Speaker 00:
But you don't have that in your petition, right?

[00:13:32] Speaker 03:
That's what Guan says.

[00:13:33] Speaker 03:
We have structural stability.

[00:13:35] Speaker 03:
I'm giving an example of what Guan says with this structure.

[00:13:38] Speaker 00:
Is there anything about this beautifying feature in Guan?

[00:13:42] Speaker 00:
Does that have anything to do with the four walls?

[00:13:45] Speaker 03:
Sure it does, meaning what I just talked about is that when you have the four walls, you have a top and bottom that are opaque.

[00:13:53] Speaker 03:
And then you have inner and outer that are connected between the two that are transparent.

[00:13:57] Speaker 03:
That's four walls.

[00:13:58] Speaker 03:
You have an inner wall connected to an opaque.

[00:14:01] Speaker 03:
It's connected to an outer connected to another opaque.

[00:14:04] Speaker 03:
That's four walls.

[00:14:05] Speaker 03:
It's the use of those four walls with the use of the transparent basically substituted for the two walls that are not transparent in Peterson.

[00:14:14] Speaker 03:
that allow you to see and have the aesthetics provided by Guan.

[00:14:18] Speaker 02:
Where do you discuss these aspects of Guan in the petition?

[00:14:22] Speaker 03:
The statements in Guan talk about, it's on page 158 of the petition.

[00:14:34] Speaker 03:
As with Peterson, Guan does not place any restraint on the materials used for the supporting spacers.

[00:14:42] Speaker 03:
And then Guan explains that the circular wall of the present utility model is made of a transparent material and the supporting spacers in the circular wall are of different colors.

[00:14:53] Speaker 03:
The overall appearance is refreshing and it is believed consumers desire to purchase can be aroused by the structural stability and beautifying shape, thus it would be obvious to combine.

[00:15:06] Speaker 02:
Okay.

[00:15:07] Speaker 02:
All right.

[00:15:07] Speaker 02:
We'll give you two minutes.

[00:15:17] Speaker 02:
Okay, Mr. McCoy.

[00:15:21] Speaker 01:
Thank you, Your Honor.

[00:15:24] Speaker 02:
As this Court has explained... Let's just start with that last point.

[00:15:28] Speaker 02:
The Board said that this petition didn't sufficiently argue Guan, and that part that we've just been looking at seems to be a pretty clear argument that there was a motivation to add Guan,

[00:15:46] Speaker 02:
quotes the parts of Guam that supply the motivation.

[00:15:49] Speaker 02:
So why isn't the board wrong about this?

[00:15:54] Speaker 01:
The board isn't wrong for multiple reasons, Your Honor.

[00:15:58] Speaker 01:
As the board correctly found, ground two was deficient as written.

[00:16:02] Speaker 01:
No, we're not talking about ground two now.

[00:16:04] Speaker 02:
We're talking ground two in the terms of combination of Peterson and Fireman.

[00:16:10] Speaker 02:
We're talking about, first, the three references, Peterson, Fireman, and Guam.

[00:16:17] Speaker 01:
Yes, Your Honor.

[00:16:17] Speaker 01:
And just to be clear, that is in ground two.

[00:16:20] Speaker 01:
Claim 18 is in ground two.

[00:16:21] Speaker 01:
As the board correctly found in its institution decision, decision denying or hearing, and in the final written decision, as written, this petition was deficient on this issue.

[00:16:30] Speaker 02:
Why?

[00:16:32] Speaker 01:
The support that is cited for motivation to combine points back to an analysis of just combining Peterson and Fireman.

[00:16:39] Speaker 02:
No.

[00:16:40] Speaker 02:
We just read what they said about the law.

[00:16:42] Speaker 01:
If you keep reading, the only support is, in the following sentences, see supra.

[00:16:48] Speaker 01:
That is just talking about combining Peterson and Fireman.

[00:16:51] Speaker 00:
What about this language?

[00:16:53] Speaker 00:
I think that just to make sure that you're addressing the argument made by your opposing counsel.

[00:16:59] Speaker 00:
Yes.

[00:17:00] Speaker 00:
So it says, Gwine does not place any restrainer materials used for supporting spacers, and instead explains that the circular wall 24 of the present utility model is made of transparent material, and the supporting spacers in the circular wall are of different colors.

[00:17:17] Speaker 00:
And the overall appearance is refreshing, as it believed consumers' desire to purchase can be aroused by structural stability and beautifying shape.

[00:17:25] Speaker 00:
OK, that's on page 159.

[00:17:27] Speaker 00:
And then it says, thus it would have been obvious, right?

[00:17:30] Speaker 00:
to combine the teachings of Peterson, Fireman, and Guan.

[00:17:34] Speaker 00:
Then later, when they talk about Guan and they say, to the extent Patent Owner argues the top wall and bottom wall are not taught by Peterson in view of Fireman, these features would have been obvious when combined with the teachings of Guan.

[00:17:49] Speaker 00:
Right?

[00:17:49] Speaker 00:
This is on page 161, and it says, see the reason before.

[00:17:53] Speaker 00:
So the question is, why isn't the reason on page 158 describing Juan a motivation to combine or modify Peterson in view of firemen and in view of Juan to have a top wall and a bottom wall?

[00:18:05] Speaker 00:
Why isn't that sufficient?

[00:18:10] Speaker 01:
We submit that the board got it right when they said that it just wasn't clear first and foremost that this argument was well articulated in the petition.

[00:18:19] Speaker 01:
Second, we address the cuts fourth case.

[00:18:23] Speaker 01:
The cuts fourth case, I believe, Your Honor, which says just saying that something is interchangeable is not a motivation to combine it with something else.

[00:18:28] Speaker 02:
Well, that's not all they did.

[00:18:30] Speaker 01:
What's that?

[00:18:30] Speaker 01:
That's not all they did.

[00:18:35] Speaker 00:
But just looking at this, what do you say, like in plain speak, what is it that is missing here?

[00:18:41] Speaker 00:
Is there, for example, there's nothing

[00:18:44] Speaker 00:
here saying the beautifying feature has anything to do with the four walls.

[00:18:48] Speaker 00:
Do you have an argument just looking at the description of Guan on page 158 and then the discussion on page 161 to explain to us just plainly, common sense, why is it that the board interpreted this to not provide a motivation?

[00:19:07] Speaker 01:
I think the board, first and foremost, started with the point that this petition did not well articulate this argument.

[00:19:15] Speaker 01:
Is something the board found repeatedly and I think that you know I just want to know why can you support that?

[00:19:22] Speaker 00:
You should be able to support that stand up here and tell us where the board got it, right?

[00:19:29] Speaker 01:
Maybe I'm not understanding your question your honor can you try it one more time?

[00:19:32] Speaker 00:
Okay?

[00:19:33] Speaker 00:
I just want to know why do you think that?

[00:19:36] Speaker 00:
Why do you think now?

[00:19:37] Speaker 00:
Why does the board think why did the board get it right when it said?

[00:19:42] Speaker 00:
that there was no clear motivation provided in the petition for why one would modify Peterson environment in view of Gwan to have a top and bottom wall.

[00:19:54] Speaker 01:
Because the board found that this is just conclusory testimony.

[00:19:58] Speaker 01:
Just saying that something is interchangeable under the cuts fourth case, as we argued in our opposition brief at page 68, does not

[00:20:06] Speaker 01:
provide an adequate motivation.

[00:20:08] Speaker 01:
So then everything that you're left with is this reference back to Peterson plus Fireman.

[00:20:12] Speaker 00:
What about the reference to it where they quote Guan on page 158, just two pages, I think it's three pages prior to the obviousness discussion at the top wall and bottom wall.

[00:20:26] Speaker 00:
They have a quote from Guan.

[00:20:28] Speaker 00:
Why isn't that quote describing Guan's, you know, the beautifying quote?

[00:20:32] Speaker 00:
Why isn't that quote providing motivation?

[00:20:37] Speaker 01:
The quote about just trying to have a beautiful appearance?

[00:20:40] Speaker 00:
Yes.

[00:20:41] Speaker 01:
Structural stability.

[00:20:43] Speaker 01:
Well, Peterson already had structural stability based on Petitioner's own arguments with a two-walled structure, as they argued in claim one.

[00:20:50] Speaker 01:
So that wasn't a problem with Peterson.

[00:20:52] Speaker 01:
And then there was no known problem with beautifying appearances in the prior art.

[00:21:01] Speaker 01:
Outside, I guess, of this maybe one paragraph 10 of Guan,

[00:21:05] Speaker 01:
And so is that your question?

[00:21:06] Speaker 01:
Why is that not enough?

[00:21:07] Speaker 02:
The argument is that you wouldn't combine guan because it wasn't necessary, because it was already beautiful and structurally stable.

[00:21:16] Speaker 01:
Peterson was perfectly structurally stable.

[00:21:19] Speaker 01:
I mean, they relied repeatedly on the strength of these materials that are used to form these types of products to support all of their various arguments.

[00:21:31] Speaker 01:
So then to say that the exact thing they're arguing isn't

[00:21:36] Speaker 01:
stable enough without any other further support just is conclusory and unsupported and that's not the type of argument that carries the day on a motivation you can buy.

[00:21:51] Speaker 01:
So I have eight and a half minutes left and I haven't addressed in Texas cross appeal yet so if I could, unless you have any other questions.

[00:22:00] Speaker 01:
Well, I guess one other thing before I move away.

[00:22:05] Speaker 01:
On the claim construction point, first of all, I think you can look at claim differentiation, claims one and claims 18.

[00:22:10] Speaker 01:
This is the two sheets?

[00:22:11] Speaker 01:
Yes, the two sheets versus two walls versus four walls, Your Honor.

[00:22:16] Speaker 01:
And a lot of criticism was made against us about that issue or on that issue, but we didn't address it in our preliminary response because as we submitted and as the board correctly found, we submit ground two was deficient in many respects.

[00:22:29] Speaker 01:
And we were denied an opportunity to force a reply if Bessway, in fact, raised additional arguments in its supplemental reply.

[00:22:37] Speaker 01:
So with that being said, I will switch now to in-text across appeal.

[00:22:44] Speaker 01:
So this boils down to the substantial overlap limitation in claim one, Your Honors.

[00:22:49] Speaker 01:
The ultimate finding that Fireman discloses or suggests at appendix 21 is the real issue here.

[00:22:56] Speaker 01:
We submit there's no evidence.

[00:22:58] Speaker 01:
Fireman expressly discloses in figure 5a that That structure shows the substantial overlap limitation There's also what this way and it says that appendix 21 was Where the board made the finding that firemen discloses or suggests?

[00:23:20] Speaker 01:
That it's there

[00:23:22] Speaker 01:
And then when you just go on and continue to look at it.

[00:23:24] Speaker 02:
Is that on page 816?

[00:23:27] Speaker 02:
Is that the figure?

[00:23:29] Speaker 01:
Yes.

[00:23:30] Speaker 02:
Yes it is.

[00:23:31] Speaker 02:
And so what you're arguing is that that shows that the top layer doesn't extend all the way over the mesh?

[00:23:43] Speaker 01:
The top layer doesn't extend over the mesh and the mesh doesn't extend all the way down.

[00:23:48] Speaker 01:
It has to be substantially overlapping at the perimeter is the issue.

[00:23:51] Speaker 02:
What the board found is that that's just a traditional way of showing a cutaway to establish the underlying structure, right?

[00:23:58] Speaker 01:
And they found that based on an argument best way made that that's just how you do it.

[00:24:03] Speaker 00:
But tellingly, they're- And also because the spec itself says figure A illustrates a schematic cutaway view, right?

[00:24:11] Speaker 01:
It says it's a cutaway.

[00:24:12] Speaker 01:
And so it's being argued that it's a cutout of a middle part of the wall.

[00:24:16] Speaker 01:
But there is no other objective evidence to say this is how people understand this.

[00:24:19] Speaker 01:
And there's a lot of other evidence, Your Honors, to show why this material would not actually extend all the way to the perimeter throughout the entire wall of firemen.

[00:24:29] Speaker 01:
Nor is there any evidence that somebody would cut anything out of firemen or that firemen itself is cut from any other different structure.

[00:24:39] Speaker 01:
All these predicate findings are what the board had to rely upon to ultimately reach its conclusions.

[00:24:45] Speaker 01:
They didn't just say it's there.

[00:24:47] Speaker 01:
They supported it with all this additional extraneous evidence that is not found in the petition.

[00:24:52] Speaker 01:
And that is one of the key issues here is that this is all argument that is not in the petition.

[00:24:58] Speaker 01:
The first time you ever find anything in the record about this bulk uniform material is an argument best way made in their reply brief.

[00:25:08] Speaker 01:
Then it's relied upon in the final written decision and relied upon again heavily on this appeal.

[00:25:15] Speaker 01:
It's simply not in the petition.

[00:25:17] Speaker 01:
There's a lot of argument about in Texas expert agreed about this material.

[00:25:24] Speaker 01:
He agreed that hypothetically, if there was a bulk uniform material, and if that bulk uniform material, a portion of it was cut, and if that cut portion was used in Peterson, yes, the claim would be satisfied.

[00:25:41] Speaker 01:
But that is a hypothetical.

[00:25:42] Speaker 01:
That's not objective evidence.

[00:25:44] Speaker 01:
persuasive, and it's certainly not in the petition anywhere.

[00:25:47] Speaker 01:
So that's one of the biggest issues here, is that this first came up on reply.

[00:25:51] Speaker 01:
And as we've shown, it's not expressed, nor is it inherent.

[00:25:55] Speaker 01:
We injected the inherency issue just to help substantiate the point that it's not expressly disclosed.

[00:26:01] Speaker 01:
There's a lot of different types of three-ply materials known in the art.

[00:26:06] Speaker 01:
There's lots of different reasons why you don't want to have the

[00:26:11] Speaker 01:
middle layer go all the way to the perimeter.

[00:26:14] Speaker 01:
The board even acknowledged this on appendix page 22.

[00:26:17] Speaker 01:
But then it just ignored that finding to reach this conclusion that it's suggested environment.

[00:26:25] Speaker 01:
So we talked about the Arendy case in our brief and the DSS Tech case.

[00:26:32] Speaker 01:
To us, that's what this really comes down to, Your Honors, is trying to gap fill a missing limitation with background knowledge in the arc.

[00:26:41] Speaker 01:
As a rindi explained that has only happened once and it was the perfect web case And they said that's the exception not the rule, and that's a good strong holding in perfect web It was a four step method a bcd No dispute Steps a through c were known and step d was merely repeat a through c until you achieve the claim to purpose And that's the only case that we're aware of where anybody has actually done this kind of gap-filling analysis

[00:27:12] Speaker 00:
Just to make sure I understand exactly what you're talking about.

[00:27:15] Speaker 00:
It's this substantially overlaps the outer perimeter limitation, right?

[00:27:20] Speaker 00:
Correct honor has to be at the correct and your view is that given that there's this figure 5a There should have been something more explicit in the reference to explain that Figure 5a is not just

[00:27:37] Speaker 00:
It's not depicting what it actually looks like.

[00:27:41] Speaker 00:
Or given the figure 5A, which is described as a cutaway, nonetheless, the reference should have had something saying that that porous sheet 42 extends entirely along the layer 40.

[00:27:56] Speaker 01:
Yes, or for example, Feynman also talks about a lot of different ways to manufacture this material, and it's undisputed that using those very manufacturing methods, you do not have to, the end result is not necessarily going to have something that goes all the way to the edges, and there's reasons for that.

[00:28:14] Speaker 01:
And again, all of this comes, the ultimate predicate findings here really stem from the last sentence

[00:28:20] Speaker 01:
in paragraph 113 of Dr. Sadek's declaration, which is a completely conclusory sentence that cites no evidence whatsoever.

[00:28:30] Speaker 01:
And we submit that it was just that kind of was the foundation of this house of cards.

[00:28:35] Speaker 01:
And we think once that foundation falls, the rest of it falls as well.

[00:28:39] Speaker 01:
So before I sit down, I will make one more point going back to your question.

[00:28:51] Speaker 01:
Juan and Peterson, when they're talking about this four-wall construction, there's no tie anywhere in the petition to four-wall construction and beautifying appearance.

[00:29:00] Speaker 01:
The testimony they rely on for Mr. Kuchel says that it would create a higher pool.

[00:29:06] Speaker 01:
And that's something that a buyer would be interested in, not in this translucent, beautifying appearance.

[00:29:15] Speaker 01:
Structural.

[00:29:15] Speaker 01:
A higher structure.

[00:29:18] Speaker 01:
All right, I will save the remaining time for rebuttal.

[00:29:21] Speaker 01:
Thank you, Your Honor.

[00:29:33] Speaker 03:
Just one issue on Guan, Your Honor.

[00:29:36] Speaker 03:
They talk about focusing on the petition.

[00:29:39] Speaker 03:
But consistent with the Chamberlain group, we again argued this issue in connection with the reply and addressed many and expounded further on some of the reasons in the petition why it would be obvious.

[00:29:56] Speaker 03:
And that's on pages 669 and 670.

[00:30:00] Speaker 03:
So it's not fair to just focus on the language of the petition as they've tried to do.

[00:30:06] Speaker 03:
Let's, the one statement I want to start with on claim one is he says it's not undisputed, and I think I got this right, not undisputed that the manufacturing methods disclosed in firemen would have to yield the substantial overlap.

[00:30:23] Speaker 03:
But that's not true.

[00:30:24] Speaker 03:
There is no evidence that they presented that any known manufacturing method would achieve something other than a laminate that had the substantial overlap.

[00:30:34] Speaker 03:
What he's referring to

[00:30:36] Speaker 03:
His counsel at the deposition of our expert put a hand-drawn sketch that had mesh slightly removed from the borders of the perimeter and said, could you make this?

[00:30:47] Speaker 03:
And he said, sure.

[00:30:49] Speaker 03:
And as the board noted, this was a hypothetical manufacturing method.

[00:30:52] Speaker 03:
There was no evidence presented by Intex, no evidence presented otherwise by their expert that this was something that was even known.

[00:31:01] Speaker 03:
To the contrary.

[00:31:03] Speaker 03:
All the evidence supports that the teachings of firemen did disclose based on the methods that were discussed in there and based on the admissions of Mr. Kuchel, the substantial overlap limitation.

[00:31:19] Speaker 03:
Both Dr. Sade testified that multi-layer materials in the board found with mesh sandwich between PVC was well-known and particularly well-known in the inflatable products industry.

[00:31:32] Speaker 03:
In Texas, expert notably agreed that it was well-known.

[00:31:36] Speaker 03:
Similarly, Dr. Sade also testified that with the methods in firemen, bulk multilayer laminate sheets were well-known.

[00:31:46] Speaker 03:
These were bulk sheets that were formed using the roll process of firemen described in paragraphs 20 to 21, where they were formed in a roll, and then the individual components

[00:31:55] Speaker 03:
were cut out.

[00:31:57] Speaker 03:
Again, and when they were cut out, as their expert, Mr. Kuchel agreed.

[00:32:02] Speaker 03:
When they were cut out, for example, he was asked, if you cut a tensioning member from a bulk PVC sheet, would it have substantial overlap?

[00:32:12] Speaker 03:
And he agreed.

[00:32:14] Speaker 03:
I think we're out of time.

[00:32:15] Speaker 02:
Thank you.

[00:32:15] Speaker 02:
Thank you, Your Honor.

[00:32:19] Speaker 01:
Mr. McCoy, you got about a minute.

[00:32:23] Speaker 01:
Thank you, your honor.

[00:32:24] Speaker 01:
So as my opposing counsel was just describing, he was talking about three-ply materials generally.

[00:32:30] Speaker 01:
Notably, you never heard him say the word uniform.

[00:32:32] Speaker 01:
That's what this all came down to.

[00:32:34] Speaker 01:
It has to be uniform for all these different predicate findings to have any weight whatsoever.

[00:32:40] Speaker 01:
And there's just no evidence that that's necessary.

[00:32:43] Speaker 01:
Their own expert said there's advantages to not welding it all the way to the edge.

[00:32:48] Speaker 01:
Their own expert said, when talking about the exhibit, applying the very methodology described in Fireman would give you what that looks like, if you wanted it to look that way.

[00:32:58] Speaker 01:
And he said, you can make it however you want it.

[00:32:59] Speaker 01:
All of this is in our papers.

[00:33:02] Speaker 01:
Again, we go back to the Arendy case.

[00:33:10] Speaker 01:
To us, this comes down to trying to gap fill something that is just not expressly

[00:33:14] Speaker 01:
Disclosed anywhere in firemen and just looking at the arguments themselves Why if it was so expressly and so clearly it disclosed Why go through all this trouble to point to all this additional evidence to try to support the finding?

[00:33:28] Speaker 01:
It's just not there And then you have the problem that all this evidence is conclusory, and it's not in the petition it came up for the first time on reply Okay, thank you.

[00:33:37] Speaker 01:
Thank you.

[00:33:37] Speaker 02:
Thank both counsel cases submitted