[00:00:45] Speaker 00:
We can begin, Council.

[00:00:46] Speaker 02:
May it please the Court.

[00:00:47] Speaker 02:
My name is Joseph Kinkart, and I am here for Appellate and Coastal Industries.

[00:00:52] Speaker 00:
Mr. Kinkart, as a housekeeping matter, in the Blue Brief at 6, you say that Independent Claim 1 is representative, but since you're making individual arguments regarding the dependent claims, I assume you mean it's illustrative.

[00:01:06] Speaker 00:
It is illustrative.

[00:01:08] Speaker 00:
Okay.

[00:01:08] Speaker 00:
Are Independent Claims 12 and 22 representative or illustrative?

[00:01:14] Speaker 02:
12 would be illustrative, 22 I think in this case would also be illustrative.

[00:01:20] Speaker 02:
Okay, thank you.

[00:01:26] Speaker 02:
Obviously we're here today asking that you overturn the board's decision on claims 4 and 6, 10 and 15 as well as

[00:01:35] Speaker 02:
The PTAB draws to the distinction that the stops in the 944 patent are positioned at the end of the track.

[00:02:03] Speaker 00:
whereas Como only limits the stops to the rail members.

[00:02:08] Speaker 00:
Doesn't Como disclose both that end caps exist at the end of track in figure four and that rail members are connected to a track?

[00:02:19] Speaker 00:
Thank you, Your Honor, yes.

[00:02:22] Speaker 02:
Don't thank me, I think that's true.

[00:02:25] Speaker 02:
I believe it's true and it probably is a terrific segue into just a very basic syllogism.

[00:02:33] Speaker 02:
The tracks are coupled to the rails, uncontroverted.

[00:02:36] Speaker 02:
The rails have stops attached to them, therefore the tracks are coupled to the stops.

[00:02:42] Speaker 02:
The limitations coupled and interlocked, specifically in the claims construction, do not require direct contact at all.

[00:02:51] Speaker 02:
The only discussion of coupled in the detailed description specifically names parts, rails and tracks, that never touch each other,

[00:03:01] Speaker 02:
and they move in relation to each other and the board acknowledges this in their claim construction but for some reason interpreted it much more narrowly essentially importing a new limitation into the claim we'll start with claim four and coupled that it be in contact with it and that they wanted to know where it's in contact with it and it goes against the claims construction and in truth what this invention would be about

[00:03:30] Speaker 01:
I guess maybe one way of understanding the board's concern here was that let's assume for the moment that inside your head you were thinking stops mounted to the rail members and the rail members are somehow coupled to the tracks and so therefore the stops are coupled to the tracks.

[00:03:55] Speaker 02:
Yes.

[00:03:56] Speaker 01:
But the explanation in the petition or in your papers didn't quite lay that out.

[00:04:04] Speaker 01:
That the papers were more geared towards almost an assumption that having elements 150 coupled to carrier tracks 122, 124, 126 corresponds to the coupling of stops to the

[00:04:25] Speaker 01:
to the first and second track members, period.

[00:04:28] Speaker 01:
And so, therefore, the board could have assumed, maybe reasonably, that you were thinking that the 122, 124, and 126 rail members of Pomo correspond to the first and second track members, which I think everybody agrees is not the case.

[00:04:53] Speaker 02:
If I follow correctly, the rail members are coupled to the track members.

[00:04:59] Speaker 01:
In Como, you're saying?

[00:05:00] Speaker 02:
In Como, and if I can refer you to, I believe it's page nine of the blue brief.

[00:05:08] Speaker 02:
We have the parts laid out there in an annotated version of Figure 6, and the carrier here, 122, would be analogous to the rail.

[00:05:19] Speaker 02:
And the catch caps would be the stops, and probably importantly, they're located at the end, but they're also very movable.

[00:05:28] Speaker 02:
And so, if you look above to 11, the tracks would be the yellow portions, first and second track members there.

[00:05:37] Speaker 02:
Does that answer your question?

[00:05:40] Speaker 01:
Well, I guess what I'm trying to figure out is what was it that you argued to the board below.

[00:05:47] Speaker 01:
And if it looked to the board like you were arguing that Como's rail members 122, 124, and 126 are the corresponding claim to track members,

[00:05:59] Speaker 01:
then it wouldn't be unreasonable for the board to say that's an incorrect matching up of the Como disclosure to the claim because your, because of Como's rail members are not the claim track members, the rail members are the, what's the other term, rail members.

[00:06:28] Speaker 02:
I believe that it's laid out here on Figure 11 and Figure 6 where what we explain to the board is that the first and second track members are in Figure 11 and you can see the cross section of those and they would correspond with

[00:06:48] Speaker 02:
I guess items 1, not 130, I am sorry, 132.

[00:06:53] Speaker 02:
But they're labeled here in red, first and second track numbers.

[00:06:56] Speaker 02:
And that actually becomes very important because there was an in-depth discussion on the shape of that cross-section and whether that would include a C-shaped.

[00:07:05] Speaker 02:
So I do believe that the board understood we were referring to that portion as the track numbers.

[00:07:13] Speaker 01:
I mean, do you have a site to your petition?

[00:07:21] Speaker 02:
I can probably do that.

[00:07:43] Speaker 02:
Let's try Appendix 279 with Expert Pointer, who talks about modifications of the Tracking Women's... Well, it would be in your petition, right?

[00:07:57] Speaker 02:
I'm sorry, it should be in the petition too.

[00:08:00] Speaker 02:
I cannot point you to that at this moment, but I...

[00:08:06] Speaker 02:
I do know that we had an in-depth discussion on the shape of the tracks that the board was well aware that it was this cross-section part that the tracks were in fact within the header and that these rails stayed on it.

[00:08:21] Speaker 02:
In fact, the board also commented on the idea that the stops were attached to the rails and they had problem with that with claim six also.

[00:08:34] Speaker 02:
that the stops were on the rails and that we had not explained how to attach them to the tracks.

[00:08:46] Speaker 02:
And so I do think that they understood the lining up of that.

[00:09:09] Speaker 01:
Like look at 8269 for example, paragraph 152.

[00:09:15] Speaker 01:
Yes sir.

[00:09:27] Speaker 01:
This is your expert, I heard.

[00:09:31] Speaker 01:
I don't know how to say his name.

[00:09:32] Speaker 01:
Poenaru or something?

[00:09:33] Speaker 01:
Poenaru?

[00:09:34] Speaker 01:
Yes.

[00:09:34] Speaker 01:
Poenaru?

[00:09:35] Speaker 02:
Yes.

[00:09:36] Speaker 01:
Okay.

[00:09:40] Speaker 01:
So, he says... Thank you.

[00:09:45] Speaker 01:
Looking at 8269 paragraph 152.

[00:09:55] Speaker 01:
Please continue.

[00:09:57] Speaker 01:
All right, well, I'll read it.

[00:09:59] Speaker 01:
It says, Como discloses catch assemblies 150, the reality of stops, coupled to first and second and third carrier tracks 122, 124, 126, parentheses, track members, closed parentheses.

[00:10:16] Speaker 01:
And then it shows an annotated version of Figure 6, where you identify

[00:10:26] Speaker 01:
carrier track 124 as first and second track members.

[00:10:36] Speaker 01:
So I'm just saying, if I'm the board and I'm reading this, it looks to me like your theory of Como is the stops

[00:10:46] Speaker 01:
which are mounted to the carrier tracks 122, 124, 126, which you believe to be the track members therefore meet the claim limitation of a plurality of stops coupled to the first and second track members.

[00:11:06] Speaker 02:
Your Honor, I understand your concern and I

[00:11:10] Speaker 02:
We believe that we refer to those as the rail members, but if they are to be viewed as track members, clearly the stops are at the ends then on them or attached there too.

[00:11:20] Speaker 01:
But I think I thought you said everybody agrees now that 122, 124, 126 are not track members, they're rail members.

[00:11:33] Speaker 01:
And so the theory presented to the board however was that those

[00:11:40] Speaker 01:
Those carriers were the first and second track members.

[00:11:43] Speaker 01:
And so that's what the board disagreed with when it concluded, sorry, I don't see how you made the case for explaining why this prior reference meets this limitation.

[00:11:56] Speaker 01:
Because those aren't track members, those are railmobiles.

[00:12:01] Speaker 02:
If they were track members, then the reason given by the board would not apply that we failed to show where the stops would be on the track members.

[00:12:13] Speaker 02:
And so, in fact,

[00:12:15] Speaker 02:
It would take away the board's reason for saying that this was patentable.

[00:12:22] Speaker 02:
By indicating that there's stops here, and if we presume to adopt the interpretation that you pointed out there, then the stops are clearly coupled to the tracks, and so then they would have the effect... But the board said those aren't track members, those are rail members.

[00:12:41] Speaker 02:
Thank you.

[00:12:43] Speaker 02:
That is my point.

[00:12:44] Speaker 02:
I think in the subsequent writings and in the distinction, we named them as realm members and we distinguished between them.

[00:12:52] Speaker 01:
But then you never made the extra explanation of, okay, we're pivoting away from what Paranaro said in paragraph 152.

[00:12:59] Speaker 01:
Let me be a little more clear.

[00:13:02] Speaker 01:
Our theory is the commos

[00:13:05] Speaker 01:
rail members are coupled to these other things which are the track members and so therefore when you see uh these assemblies 150 which are the plurality of stops that are plainly coupled to now what i'm calling rail members not the track members you will also see that now those

[00:13:24] Speaker 01:
what I'm calling today, not before, but today, the rail members are coupled to these other things called track members.

[00:13:31] Speaker 01:
And so that's why Como has stops that are coupled to track members as required by the claims.

[00:13:40] Speaker 02:
And I think that the board and this court can be in full agreement that the rails, the tracks, and the stops are there.

[00:13:49] Speaker 02:
And that coupled is a very, very broad

[00:13:54] Speaker 02:
One of the reasons that we give is that it's a functional limitation and should not be given weight.

[00:14:01] Speaker 02:
But the parts are there, the structural elements are there, and they've been pointed out, perhaps erroneously by Mr. Cormann and I, but clearly the court understood where we had tracks, where we had rails, and where the stops were.

[00:14:15] Speaker 02:
Couples does not require that they ever come into contact with each other.

[00:14:19] Speaker 02:
The pieces are there.

[00:14:21] Speaker 02:
They do have the desired effect.

[00:14:23] Speaker 02:
So there's several reasons why this court could overturn that, which would be one, the functional limitation should not apply, the couple, and there's a whole line of cases with Henry Shriver.

[00:14:38] Speaker 02:
You're eating what little time you have left.

[00:14:42] Speaker 02:
All of this applies to 6 and to 15 also.

[00:14:47] Speaker 02:
And two, that the experts have said that it would be very obvious to make this adaptation and that these things are not calcified hearts or extreme chemistry here.

[00:14:59] Speaker 02:
What we're dealing with is

[00:15:01] Speaker 02:
Simple mechanical parts that have been around for 100 years.

[00:15:06] Speaker 02:
And so it would be obvious for someone to take stops and to arrange them on rails or tracks in these configurations.

[00:15:12] Speaker 02:
If you would, those skilled in these arts can put these pieces together after 100 years, almost as easy as maybe someone on the street puts together Lego pieces.

[00:15:22] Speaker 02:
This is not challenging.

[00:15:23] Speaker 02:
And so I understand your concern in the initial clarification.

[00:15:28] Speaker 02:
I do submit that the court understood what was a track, and what was a rail, and what was a stop, and that they discussed that pretty much in depth in the reasoning that there would be invalidation of the other claims.

[00:15:43] Speaker 02:
I'd like to reserve what's left.

[00:15:45] Speaker 02:
Thank you.

[00:15:57] Speaker 03:
Good morning, Your Honors.

[00:15:58] Speaker 03:
I'm Ryan Fountain.

[00:15:59] Speaker 03:
I represent Shower Enclosures America.

[00:16:01] Speaker 03:
As a housekeeper, initially, I would say the representative claims are 1 and 12.

[00:16:07] Speaker 03:
The examiner found two distinct areas of patentability, and I think 1 and 12 cover those.

[00:16:13] Speaker 03:
The other two independent claims make the distinction between panels and doors.

[00:16:17] Speaker 03:
But for our purposes, we have focused over and over again on header tracks,

[00:16:22] Speaker 03:
rail members, track members, and unfortunately what I just heard was a nose of wax argument.

[00:16:31] Speaker 00:
The PTAB determined that a number of claims weren't anticipated by Van Wielden.

[00:16:37] Speaker 00:
Pardon me?

[00:16:38] Speaker 00:
The PTAB determined that a number of claims were anticipated by Van Wielden.

[00:16:44] Speaker 00:
It seems that your only argument regarding anticipation is that the PTAB erred by failing to include creditable

[00:16:53] Speaker 00:
No, sir, that's not correct.

[00:16:57] Speaker 03:
That is the primary thing.

[00:16:58] Speaker 03:
The primary area of law was misunderstanding the level of ordinary skill in the art determination, but also in the prior art analysis itself, consistency is absolutely required.

[00:17:09] Speaker 03:
You can't call something a header track and then also call it a track member.

[00:17:16] Speaker 03:
Because you're then referring to the same components as two different things.

[00:17:21] Speaker 03:
And we detailed that at length in here.

[00:17:23] Speaker 03:
But I think that distinction with regard to confusing elements was shown in the discussion just a moment ago with regard to claim sixes too, as well.

[00:17:34] Speaker 03:
If we look at appendix page 90, yes, the board said, we think you've put your stops here, but not here.

[00:17:44] Speaker 03:
But even if, it turns out, you can twist this meaning, you still did not explain sufficiently how they interlock.

[00:17:53] Speaker 00:
Colman says there are stops at the end of a rail that is attached to a track.

[00:17:57] Speaker 00:
And 944 says there's a stop at the end of a track upon which there's also a rail.

[00:18:03] Speaker 03:
What's the difference?

[00:18:06] Speaker 03:
We'll read the entire word of that claim.

[00:18:09] Speaker 03:
It's for the interlock function.

[00:18:12] Speaker 03:
And the interlock function was what the board said, and not just the function, but the structure, because you can't have something interlocked without a structure that holds it there.

[00:18:22] Speaker 03:
And the explanation of why it would be obvious to do that, or anticipation to do that, does not show up there.

[00:18:28] Speaker 03:
And that's at A90.

[00:18:31] Speaker 03:
Now, getting back to LOSA, fundamental flaw, fundamental reason I'm standing here today is the board misunderstood that the level of technology

[00:18:43] Speaker 03:
does not necessarily mean the level of ordinary skill in the art.

[00:18:47] Speaker 03:
The level of technology talks about, in effect, the level of invention.

[00:18:51] Speaker 03:
How do we get to where we're at?

[00:18:54] Speaker 03:
But technology isn't people.

[00:18:56] Speaker 03:
Whose eyes look through these glasses to see the prior art?

[00:19:00] Speaker 03:
There is no evidence here of who that is.

[00:19:04] Speaker 03:
The inventors were engineers knowing what engineers know.

[00:19:08] Speaker 03:
Do engineers know the skill level of the people around them?

[00:19:12] Speaker 03:
Mr. Planario, or however it's pronounced, I'm sorry, clearly didn't.

[00:19:18] Speaker 03:
He said at one point in his testimony, I considered the level of skill even of the inventor.

[00:19:24] Speaker 03:
But when asked what that level of skill was, he didn't know.

[00:19:27] Speaker 03:
So he proved he could not have done what he said he did.

[00:19:30] Speaker 03:
There's nothing in the evidence to show what the level of that skill is.

[00:19:35] Speaker 03:
And without that, everything... Can you put on an expert?

[00:19:41] Speaker 03:
Counterweight is not confrontation.

[00:19:42] Speaker 03:
You don't want me to put on an expert as a counterweight.

[00:19:45] Speaker 01:
Wait, wait, wait.

[00:19:46] Speaker 03:
We did not put on next week.

[00:19:48] Speaker 03:
We did not.

[00:19:49] Speaker 03:
And the reason we didn't do it because that would be mere counterweight.

[00:19:52] Speaker 03:
To simply say the level of skill as a high school grad or the level of skill as a PhD tells you as a fact finder, nothing.

[00:20:00] Speaker 03:
Without confrontation, across examination, to distill that analysis down, to distill that evidence to find out, is there merit to it, or is there nothing to it?

[00:20:10] Speaker 01:
And when we confront it on cross examination... Can you give me an example of what you think needed to be said or done that is missing from this record?

[00:20:21] Speaker 01:
I know you're saying a lot of words, but just reduce it down to what's the magic thing that needed to be done that wasn't done here.

[00:20:29] Speaker 03:
Their experts were told by their attorneys, six factors they had to consider.

[00:20:34] Speaker 03:
Okay, go out and determine the level of skill we invented.

[00:20:37] Speaker 03:
Go out and determine the level of skill... What's missing?

[00:20:41] Speaker 01:
What's missing?

[00:20:41] Speaker 01:
What did they not say that needed to be said?

[00:20:44] Speaker 03:
Did he graduate from high school, college, PhD?

[00:20:47] Speaker 03:
How many years' experience has he had?

[00:20:49] Speaker 03:
Of anyone else in this field... Well, couldn't an expert have told us that?

[00:20:54] Speaker 03:
They could have, but they didn't.

[00:20:56] Speaker 03:
That's my point.

[00:20:57] Speaker 03:
Why didn't you put your expert in to say it?

[00:20:59] Speaker 03:
Because what you really want is the truth.

[00:21:02] Speaker 03:
You don't want me to tell the board, you can go here.

[00:21:05] Speaker 03:
I'm telling you if I simply put an expert on and you had their expert versus our expert.

[00:21:12] Speaker 03:
The board would simply have to choose between the two.

[00:21:15] Speaker 03:
But what you really want to know is, what's the basis of the expert's opinion?

[00:21:19] Speaker 03:
Did one of these experts conduct a survey or did he not?

[00:21:23] Speaker 03:
So zero is a number in this context.

[00:21:26] Speaker 03:
Their expert had zero factual basis.

[00:21:29] Speaker 03:
And under 702, he has to have sufficient facts.

[00:21:34] Speaker 03:
It was a federal event in 702.

[00:21:36] Speaker 03:
Federal event in 701, he has to have reliable facts, reasonable facts.

[00:21:41] Speaker 03:
He had no facts in which to form either a lay opinion or an expert opinion.

[00:21:46] Speaker 03:
His opinion is the technology is X. Okay, cool.

[00:21:51] Speaker 03:
But he could have just as easily come on board and said, I'm a neurosurgeon or a heart valve surgeon.

[00:21:56] Speaker 03:
I'm an expert in this.

[00:21:58] Speaker 03:
But what does that tell you about the people?

[00:22:00] Speaker 03:
Nothing.

[00:22:01] Speaker 03:
And that was our point.

[00:22:02] Speaker 03:
Zero is a contradiction of college degree engineer two years experience in the field and all that sort of stuff.

[00:22:10] Speaker 03:
Without something there,

[00:22:13] Speaker 03:
The board can't pass go.

[00:22:15] Speaker 03:
There is no exception in 35 USC section 112 for simple technology.

[00:22:21] Speaker 03:
Everything has to be viewed through the eyes of someone of ordinary skill.

[00:22:26] Speaker 03:
We don't have that here because we don't know who that is.

[00:22:29] Speaker 03:
Therefore, having failed that burden of proof, that critical foundational burden of proof, the board should not have gone further with the initial disclosure.

[00:22:39] Speaker 03:
Fine, they did, but they went on to a final written decision

[00:22:43] Speaker 03:
based upon no evidence of the level of ordinary skill in the art.

[00:22:48] Speaker 03:
They said, in the opinion, the prior art can show it.

[00:22:52] Speaker 03:
But that's no different than saying the sky can be blue.

[00:22:55] Speaker 03:
Did it?

[00:22:56] Speaker 03:
Is it gray?

[00:22:56] Speaker 03:
Is it black?

[00:22:58] Speaker 03:
What is the prior art showing?

[00:22:59] Speaker 03:
They didn't articulate to us.

[00:23:01] Speaker 03:
And under the Administrative Procedure Act,

[00:23:04] Speaker 03:
They're required to articulate their findings and apply those findings reasonably to the issues of law.

[00:23:11] Speaker 03:
What they said, their fundamental mistake was, technology is enough to determine the level of ordinary skill in the art.

[00:23:19] Speaker 03:
And that, I submit, is an error of law.

[00:23:22] Speaker 03:
Technology is not what people know.

[00:23:25] Speaker 03:
Technology is the creation of inventors, the creation of an abundance of people that tells you nothing about the ordinary person in the skill.

[00:23:33] Speaker 03:
of ordinary scope.

[00:23:36] Speaker 03:
Unless there are any other questions at this time, I would reserve the remainder of my time for rebuttal.

[00:23:43] Speaker 03:
Thank you, sir.

[00:23:53] Speaker 02:
Thank you, Your Honor, and obviously you

[00:23:57] Speaker 02:
That caught me off guard with your question before, but I think I understand now where the confusion arises.

[00:24:04] Speaker 02:
Comeo refers to the items that you referred to, carrier tracks 122, 24, and 26, but both Examiner Bradford and ourselves have used that item as a rail.

[00:24:18] Speaker 02:
Even though Comeo referred to them as a carrier track, it is not

[00:24:23] Speaker 02:
the header track or the first and second tracks of the claims.

[00:24:27] Speaker 02:
We need to have that transition over and read your red lights on council.

[00:24:31] Speaker 02:
I let you answer that question.

[00:24:34] Speaker 02:
Okay, so

[00:24:36] Speaker 02:
So I'm going to wrap it up and that's also supported what I just said on Appendix 91 that the board understood the distinction between the tracks and the rails of Comeo.

[00:24:46] Speaker 02:
We have given you in the briefs a number of reasons why these should be overturned.

[00:24:50] Speaker 02:
They've imported limitations that did not exist.

[00:24:53] Speaker 02:
It goes against the evidence of all the experts that it would be very easy to adapt these things.

[00:25:01] Speaker 02:
I think that claim 10A is one or more is such a profound item of law that it should be followed.

[00:25:08] Speaker 02:
Thank you.

[00:25:13] Speaker 03:
Your Honor, the only other item in rebuttal, I would say, is the experts have said it's easy to adapt this.

[00:25:22] Speaker 03:
Those are mere conclusory assertions of experts, and the board recognize that.

[00:25:27] Speaker 03:
Do you have any other questions I could help with?

[00:25:31] Speaker 00:
Thank you.