[00:00:54] Speaker 03:
The next argued case is number 191559, Henry Ratnack.

[00:00:59] Speaker 03:
Mr. Mahat.

[00:01:03] Speaker 00:
Good morning, Your Honors.

[00:01:04] Speaker 00:
May I please the Court?

[00:01:06] Speaker 00:
This case is about this mechanism to stabilize the catheter in a ritual reflex configuration.

[00:01:20] Speaker 00:
Actually, the facts is actually pretty clear.

[00:01:22] Speaker 00:
one paragraph relied on is the paragraph which says that the image assembly includes a mechanism that can fix the position and such a mechanism may include blah blah blah mechanical engagement arrangements and the second piece of evidence relied on

[00:01:48] Speaker 00:
by the board is the definition from the dictionaries of engagement.

[00:01:54] Speaker 00:
Basically, the board rely on the definition being something come together and interlocking.

[00:02:03] Speaker 02:
Even if you're right that Bayer doesn't expressly say that that mechanism encompasses the precise kind of mechanism that you're claiming,

[00:02:17] Speaker 02:
The board has an obviousness determination as well as an anticipation.

[00:02:22] Speaker 00:
Well, you see, the key is that the board made the obviousness determination based on no evidence, much less substantial evidence.

[00:02:29] Speaker 00:
You see, the teaching of the prior is focusing on that the stabilization element is attached to the catheter side.

[00:02:40] Speaker 00:
But on the other side, which is the second engagement element,

[00:02:44] Speaker 00:
not only the prior that says nothing about it.

[00:02:48] Speaker 00:
But the contest in the prize clearly suggests that it's relying on the wall on the inner surface of the channel to fix the position.

[00:03:00] Speaker 00:
And also one thing is pretty clear from the teaching is that in the contest is that the mechanical engagement is only with respect to the end of the catheter.

[00:03:15] Speaker 00:
Because if you look at around the surrounding

[00:03:18] Speaker 00:
the scheme we discussed, like balloon, like the spring, it's only with respect to the end that is attached to the catheter.

[00:03:28] Speaker 00:
It says nothing about the other side, which the second element, stabilization element, or second engagement element, even if we assume that the other end is the engagement element.

[00:03:41] Speaker 02:
Well, what about MACIDA?

[00:03:43] Speaker 02:
Doesn't that fill some of the gaps that you're pointing out?

[00:03:47] Speaker 00:
Which one?

[00:03:48] Speaker 02:
The second reference that the board relies, did I mispronounce it?

[00:03:51] Speaker 00:
Well, the second reference, the distinction is that it is preformed.

[00:03:56] Speaker 00:
It's not preattached, meaning the protrusion that comes out of it, right?

[00:04:01] Speaker 00:
I think it's called this shape, you know, called 72 or 68.

[00:04:07] Speaker 00:
This is basically preformed.

[00:04:09] Speaker 00:
It's not preattached.

[00:04:12] Speaker 00:
if the specification makes it very clear, should be construed as something that's otherwise not on the part of the inner surface.

[00:04:22] Speaker 00:
And in that reference, MACIDA, that protrusion which is used to do the locking is clearly preformed, not, for example, pre-attached.

[00:04:33] Speaker 02:
Well, what's your response to the board's, essentially your board did a KSR argument that it would have been

[00:04:40] Speaker 02:
even if Bayer was talking about a mechanism that was not within the channel, that there are only two different places that you could put such a mechanism.

[00:04:50] Speaker 02:
And why wouldn't it be obvious to try doing it there?

[00:04:54] Speaker 00:
Your Honor, this actually refers to the notion of reasonable expectation of success.

[00:05:03] Speaker 00:
First is that it's actually on the examiners or on the boards

[00:05:08] Speaker 00:
and to have the burden to establish that because MPEP clearly specified that.

[00:05:14] Speaker 00:
I think it's MPEP 2143.

[00:05:16] Speaker 00:
And second, the case law also specified that as well.

[00:05:20] Speaker 00:
In Ray Steppan, which is the reason case.

[00:05:24] Speaker 00:
You see, here's the thing, right, is that the teaching clearly shows that the only thing within the grasp of those skill in the art is to put something

[00:05:36] Speaker 00:
namely stabilization element on the end of the catheter.

[00:05:42] Speaker 00:
So putting something on the, put the stabilization element in this retroflex contest, on the other end, which is the second engagement element or second stabilization element is now within the grasp of those two in the arm.

[00:05:57] Speaker 00:
And the board made a quantum leap

[00:06:01] Speaker 00:
or without any evidence, much less substantial evidence.

[00:06:04] Speaker 00:
Because the only evidence that they had is this paragraph plus the dictionary meaning of engagement.

[00:06:12] Speaker 00:
And in fact, even with regard to engagement, you can have an engagement without any pre-attached device.

[00:06:22] Speaker 00:
For example, in the specification, I believe it's

[00:06:27] Speaker 00:
when you see figure 40, basically has this device that was set to engage with the surface of the war without any protest element.

[00:06:42] Speaker 02:
So are you saying that the board, in the context of an examination, would always have to have expert testimony before it could conclude that some mechanical operation might be within the

[00:06:56] Speaker 02:
the ken of one of skill in the art?

[00:06:59] Speaker 00:
You know, I don't care whether it's expert testimony so long as they have evidence for that.

[00:07:03] Speaker 00:
There's no evidence for that in this contest, in this configuration.

[00:07:06] Speaker 00:
You know, basically, there could be mirror different ways of stabilizing it.

[00:07:10] Speaker 00:
Like, for example, it's shown already, right?

[00:07:12] Speaker 00:
Balloon, spring, guide why, right?

[00:07:15] Speaker 00:
There could be studies of them, right?

[00:07:18] Speaker 00:
Except that

[00:07:19] Speaker 00:
those skill in the art, they only grasp that those things can only be put on the side of the catheter.

[00:07:24] Speaker 00:
And nobody in the prior even mentioned the possibility, much less the viability of putting that pre-attached device on the other end of the catheter.

[00:07:39] Speaker 00:
Okay, go on.

[00:07:40] Speaker 00:
Your Honor, I think that's pretty much the issues left in this case.

[00:07:45] Speaker 00:
You know, if you have no further questions, I can yield the podium to the other side.

[00:07:53] Speaker ?:
Okay.

[00:07:53] Speaker 03:
Okay.

[00:07:54] Speaker 01:
Thank you.

[00:07:57] Speaker 01:
Ms.

[00:07:57] Speaker 01:
Lateef.

[00:07:58] Speaker 01:
Good morning, Your Honors.

[00:07:59] Speaker 01:
May it please the Court?

[00:08:01] Speaker 01:
Ratnikar's claimed invention is anticipated by Bayer or alternatively obvious in view of Bayer or obvious in the view, obvious over the combination of Bayer and view of Maceda.

[00:08:12] Speaker 02:
I have a little problem with the anticipation conclusion, because the board simply said, or the examiner simply said, it would inherently work this way.

[00:08:22] Speaker 02:
And putting aside inherently as a difficult concept, this isn't the kind of thing where you can tell that it would automatically work that way.

[00:08:33] Speaker 02:
So I think you ought to focus on obviousness.

[00:08:35] Speaker 01:
Sure.

[00:08:36] Speaker 01:
I can do that, Your Honor.

[00:08:38] Speaker 01:
Looking at the obviousness rejection, let's first look at obviousness in view

[00:08:42] Speaker 01:
What the examiner and the board found was that there are only two possible locations where you could put bears engagement arrangements elements and that those locations would either be on the catheter or on the inside of the hollow channel and as a result of that a person of ordinary skill in the art would look and say okay

[00:09:04] Speaker 01:
within my technical grasp I can see that there's only these two places and therefore under KSR it would be obvious.

[00:09:10] Speaker 02:
What's the argument about where along the mechanism it would be placed?

[00:09:14] Speaker 01:
So Bayer teaches that it's on the catheter on the distal end and

[00:09:19] Speaker 01:
That doesn't negate the argument that a person of ordinary skill and the art could find it obvious to put it in the hollow channel to stabilize.

[00:09:29] Speaker 01:
It doesn't really matter where you put it as long as you're able to stabilize the catheter.

[00:09:34] Speaker 01:
So I'm not really sure the point of arguing about where it's located because the whole point is that you're trying to stabilize the catheter in this channel.

[00:09:43] Speaker 01:
So you're either going to put it on the catheter or you're going to put an engagement means on the catheter

[00:09:48] Speaker 01:
put engagement means on the hollow channel such that it remains stabilized.

[00:09:52] Speaker 02:
But you would agree that all the other means that are expressly disclosed in Bayer are all outside.

[00:09:59] Speaker 01:
Yes, but the examiner and the board looked at those as alternatives.

[00:10:03] Speaker 01:
Those are not examples.

[00:10:04] Speaker 01:
So they're looking at these engagement arrangements.

[00:10:06] Speaker 01:
They're not, I'm sorry, engagement mechanical arrangements.

[00:10:09] Speaker 01:
They're not looking at these springs or the balloons.

[00:10:11] Speaker 01:
Those are separate.

[00:10:12] Speaker 01:
They based their rejection on that particular type of

[00:10:16] Speaker 01:
stabilizing element.

[00:10:18] Speaker 01:
And so when you're looking at that particular type of stabilizing element, there's only two places it can be to keep the catheter inside the hollow channel.

[00:10:26] Speaker 01:
And a person of ordinary skill in the art would recognize that.

[00:10:29] Speaker 01:
And under KSR, that would make it obvious.

[00:10:33] Speaker 01:
And did you have a question?

[00:10:34] Speaker 02:
I was going to say, so what's the value of MACITA to the board's analysis?

[00:10:38] Speaker 01:
So Mesita comes in to the extent Mesita has a specific locking key arrangement.

[00:10:44] Speaker 01:
So you have Bear, which teaches stabilization elements in general, and then Mesita, but it doesn't really tell you how those engagement elements come together.

[00:10:53] Speaker 01:
Mesita comes along and tells you that they lock.

[00:10:56] Speaker 01:
So you have a member on one side of the catheter and a member inside the hollow channel that creates this locking movement so that the catheter cannot move.

[00:11:06] Speaker 01:
And so when you combine Bayer with Maceda, Ratnakar's claimed invention, again, would be obvious.

[00:11:13] Speaker 01:
There is this argument about whether or not something can be preformed or not, because Maceda does have a preformed element included in it.

[00:11:24] Speaker 01:
But if you look at Ratnakar's specification and their claimed invention, there is an element there that's also preformed.

[00:11:31] Speaker 01:
And the claims don't make a distinction about whether or not

[00:11:34] Speaker 01:
attached has to be something separate or whether or not it can be formed as a part of the hollow channel.

[00:11:41] Speaker 01:
And for example, your honors, if you'll indulge me, if you looked at APPX 225, figure 42A, you'll see what I'm talking about.

[00:11:55] Speaker 01:
There's the mating contrapture 421 in Ratnikar's claimed invention.

[00:12:01] Speaker 01:
And it is preformed just like

[00:12:05] Speaker 01:
element 72 in Maceda.

[00:12:09] Speaker 02:
What about his contention that Maceda doesn't teach the element because the locking element is an integral part and you say preformed but he says it can't be separated from.

[00:12:27] Speaker 01:
Right, so sort of the same argument.

[00:12:29] Speaker 01:
There's nothing in the claim language or in the specification to show that

[00:12:35] Speaker 01:
that makes a patentable distinction.

[00:12:38] Speaker 01:
Retinocars' own claimed invention has, in that figure that I'm showing you, a mating contraption that is an integral part of the hollow channel.

[00:12:49] Speaker 01:
So again, I'm looking at APPX 225, looking at figure 42A.

[00:12:57] Speaker 01:
And if you look at mating contraption 421, this is Retinocars.

[00:13:05] Speaker 01:
invention.

[00:13:06] Speaker 01:
That is an integral part of the hollow channel, just like Masita's element 72 is an integral part of the hollow channel.

[00:13:14] Speaker 01:
And the board and the examiner made that finding and said it works exactly the same way.

[00:13:18] Speaker 01:
There's nothing different here.

[00:13:23] Speaker 03:
Is it correct that some claims were allowed?

[00:13:26] Speaker 03:
Do you know?

[00:13:26] Speaker 01:
They were not.

[00:13:31] Speaker 01:
My understanding is they weren't allowed.

[00:13:32] Speaker 01:
They weren't

[00:13:33] Speaker 01:
argued going forward.

[00:13:35] Speaker 01:
Like, there were some rejections that right in the car did not feel the need to address or argue, Your Honor.

[00:13:47] Speaker 01:
And I can tell you what those are if you want them specifically.

[00:13:50] Speaker 01:
I just need to take a look.

[00:13:51] Speaker 01:
Were you interested in what those claims were, Your Honor?

[00:13:55] Speaker 03:
I don't know.

[00:13:56] Speaker 03:
We'll ask Mr. Ma.

[00:14:03] Speaker 02:
They were withdrawn, right?

[00:14:05] Speaker 01:
Yes.

[00:14:07] Speaker 01:
I was trying to recall if they were withdrawn or if he just wasn't contesting them.

[00:14:13] Speaker 01:
So it was Claims 41 and Claims 61.

[00:14:17] Speaker 02:
Right.

[00:14:17] Speaker 02:
Those aren't contested.

[00:14:18] Speaker 02:
And then what?

[00:14:19] Speaker 02:
62 through 66 were withdrawn, right?

[00:14:23] Speaker 01:
Oh, yes.

[00:14:24] Speaker 01:
Yes, Your Honor.

[00:14:25] Speaker 01:
My apologies.

[00:14:25] Speaker 01:
Yes, that's right.

[00:14:32] Speaker 01:
So if there are no further questions, I just want to reiterate with respect to obviousness, Your Honor, that Ratnikar's claim to invention is obvious in view of Bayer, as well as in the combination of Bayer and Maceda.

[00:14:45] Speaker 01:
And Ratnikar has shown no errors that the board has made.

[00:14:49] Speaker 01:
So I respectfully ask that this court affirm the board's decision.

[00:14:55] Speaker 01:
Thank you.

[00:14:56] Speaker 01:
Thank you.

[00:15:03] Speaker 03:
Mr. Ma?

[00:15:03] Speaker 00:
Hi, Your Honor.

[00:15:04] Speaker 00:
I just want to address the issue with respect to pre-attached versus pre-formed.

[00:15:11] Speaker 00:
You know, we construe claim like the term nodding a vacuum.

[00:15:15] Speaker 00:
but has to be within the specification, because the case law line established that the specification, the teachings in the specification, is the single best guide.

[00:15:24] Speaker 00:
And also, in Ray Smith's case, the court emphasized that the construing of a claim term has to correspond to the intention of the inventor.

[00:15:37] Speaker 00:
In this case, my colleague mentioned figure 42A, right?

[00:15:44] Speaker 00:
In fact, figure 38, figure 41A, figure 41B, figure 42A, figure 42B, when they describe the invention, especially this contraption, they all use the term attached.

[00:15:59] Speaker 00:
And throughout the specification, they use the term a catheter.

[00:16:03] Speaker 00:
So it's pretty clear what the inventor meant with regard to the term pre-attached or attached, meaning that it's something not otherwise on the catheter.

[00:16:14] Speaker 00:
Because otherwise,

[00:16:15] Speaker 00:
the specification would have said, okay, this catheter is pre-formed to have this and that, right?

[00:16:21] Speaker 00:
But in MACIDA, it's throughout the whole specification of MACIDA, right?

[00:16:27] Speaker 00:
It's always, oh, this thing is part of the surface so that this locking mechanism can be advantageously implemented when they mate together, right?

[00:16:39] Speaker 00:
So there is a big difference between pre-formed versus pre-attached in this contest.

[00:16:44] Speaker 00:
And the strength of us, of my client, is Phillips, which is the single best guy, case law, and the Inray Smith, which is the correspondent with case law.

[00:16:59] Speaker 00:
And I also want to address the KSR, my colleague mentioned.

[00:17:03] Speaker 00:
KSR specifically said you've got to have a specific reason to assert that it's obvious.

[00:17:12] Speaker 00:
Based on my understanding, throughout the whole record, there is no specific reason articulated on why those skill in the art would be motivated to somehow not putting the stabilization element on the catheter side, but all of a sudden put on the other side.

[00:17:32] Speaker 00:
which is the inner surface of the holy channel.

[00:17:38] Speaker 00:
You know, they had an opportunity to do that, but clearly they chose not to do that.

[00:17:41] Speaker 00:
So that basically shows that those giving the art is now within the grasp of our claim to marriage.

[00:17:51] Speaker 00:
So if you have any, no further questions, I'll just give the podium.

[00:17:57] Speaker 03:
Thank you, thank you both.

[00:17:58] Speaker 03:
The case is taken under submission.