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The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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All right.

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Good morning, everyone.

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The first case before the court today is in Ray Schaaf 192331.

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It's an appeal from the Patent Trial and Appeal Board.

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Mr. Curtin, are you prepared to begin?

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Yes, Your Honor.

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You may begin.

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Good morning, honorable court, Ms.

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Kelly.

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First, I'd like to put on the record that I thank Mr. John Schaefer, Mr. Thomas Lee, and the law firm of Bacon and Thomas for assisting me on the writing of the briefs in preparation for the argument.

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MPEP section 2209 demands that the USPTO

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maximize respect for a reexamined patent.

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It is our contention that this did not occur in both reexaminations.

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For example, and we'll talk about those three different aspects of what we feel was a lack of maximizing respect.

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Mr. Curtin, this is Judge Wallach.

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I have a couple of questions for you just to start.

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Is independent claim one representative of the claims in the 340 patent?

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And is independent claim one representative of the claims in the 959 patent?

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Representative of the independent claims, depending on the claim feature we discussed, the answer could be yes or could be no.

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Okay.

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Let me ask...

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Go ahead.

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Let me ask you this, then.

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In other words, there are some features that are in Claim 1 in the 340 that are absent in Claim 7 and vice versa, and the same with Claim 1 and Claim 10 and 949.

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In the Blue Brief at 8, you rely

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on what you say is an unchallenged definition of an SBS from a Wikipedia article.

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Correct.

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And I understand if the government hasn't challenged it, they haven't challenged it, but my problem with Wikipedia is my understanding is that anybody, I'm not inferring anything, but anybody, including your client, could go in and modify the Wikipedia article.

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And consequently, I don't see how we can rely on it at all.

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Okay.

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So, two things.

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First, in addition to Wikipedia, we submitted the National Plumbing Code.

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Yeah, sure.

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Sure.

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I'm just talking about Wikipedia.

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And also, you know, the examiner and the board below had an opportunity to

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I understand.

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Discuss the substance of the Wikipedia page, and they never challenge the contents of the Wikipedia page.

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I understand all that.

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Automatically... Your foundation for it.

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My foundation, the evidentiary foundation?

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Sure, because it can be by anybody.

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Well, we show the Wikipedia page to our experts and the experts said Wikipedia page was accurate.

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Okay.

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That works for me.

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Okay.

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Based on your expert, based on Wikipedia.

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Say that again?

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I say based on your expert, not based on Wikipedia.

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Well, you know,

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Okay, I'll agree with that.

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However, the patent office itself relies upon Wikipedia.

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What it does is searching and classifications.

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Mm-hmm.

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I find it problematic.

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Well, to the extent that you're talking about the

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Okay, I'm not sure what to say.

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Lose time.

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Okay, okay.

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So one of the errors that we believe the board and the examiner made was when addressing the valve means, and in this case, the valve means in claim one of the 340 and the valve means in claim one of the 959,

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that you can take them together.

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In particular, the valve means it has two separate functions.

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The first function is to selectively close.

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Sometimes it's called selectively include.

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The second function is to selectively control or selectively regulate.

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the board applied its flame construction to the references, in particular, the board conflated those two.

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Or... Did you ever argue... I'm confused.

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So is it your position here that you're saying that they conflated the two patents and that valve means should have a different meaning in each patent?

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No, no.

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OK.

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So your point is, as I understand it, is that you think there are two separate functions for valve means, right?

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Correct.

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Yes.

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All right.

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So can you tell me where in the record that you made this argument?

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OK.

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So each time we

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Yes.

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I'll try to get you the right page.

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Let me put you on mute so I don't... Okay, but you're saying you did actually make this argument, this precise argument to the board that the valve means had two separate functions.

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Yes.

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Yes.

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So...

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Well, I am going to need you to tell me where that is, because I couldn't find it.

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OK, hold on one minute.

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Sorry.

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So in the appendix page 3538 and appendix 995, I believe both of those were to the board.

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That's supposed to be there.

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Give me those pages again.

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I'm filling them up.

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3538 would be our appeal brief in the 959 pattern or the 836 re-exam.

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And then 995 is the appeal brief in the 835 re-exam or 340.

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And here's what we say.

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We say, in accordance with 112 paragraph, how it submits, that the skilled person would have understood that the valve means for size and claim one, now I'm reading from page 995, are at least directed to a structure for closing off

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the inlet and outlets of housing in order to control or preclude the flow of gas or vapors.

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So there we talk about two different functions, the control function or the preclude function.

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It looks to me that you're defining one function.

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No.

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OK, sorry, go ahead.

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Go ahead.

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It looks to me that you're arguing that it has the function of closing off in order to control the flow of gas.

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That's different than arguing that there are two distinct functions.

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One is closing off inlets or outlets and separately controlling the flow.

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Well, yeah, that's not what we meant.

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That's all I can say.

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Okay.

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You know, the... There have always been... I mean, these claims have been in front of the examiner and it's in the board forever.

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I've examined even... Examiner even mentioned means for function.

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We had to raise it.

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In raising it, we always referred to two separate functions.

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Okay, you've...

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You can keep going.

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We'll give you some extra time.

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And this, so what was intended was to say that the preclusion part, the preclusion function is the only function that is directed to removing or replacing the filters.

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The control function or the regulation function, which is in some of the claims, is not.

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So, I'll follow my sword and say, okay, it's arbitrarily written, but we have always, always, always referred to two different functions.

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Is there anything in the specification that uses controlling the flow synonymously with regulating the flow?

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Yes, yes.

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Pennix 84, page 84, the 340 pattern.

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starts with a valve 17.

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This is a column 3, line 32 to 37 of the 3405.

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A valve 17 which can shut down the fluid flow or regulate the pressure in the chamber.

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On the inlet is another valve which can also be used to regulate the pressure

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to control the fluid flow.

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So that's column 3, line 32 to 37.

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So there you're using regulation to control the flows but not together or synonymously.

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Farther down, column 3, lines 44 to 46, because the arrangement, let's talk about the valves, affords substantially uniform gas distribution among the units.

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And that balanced loading of the multiple unit system is just achieved.

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So it's really that column four, lines three through 46, that really discuss regulation and control of the flow, which is separate from closing or completely closing.

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OK.

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And you don't believe that controlling the flow is broader than just regulating the flow?

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Not as used in the claims, though, and as used in, you know, interpreting the claims in light of the spec, no.

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Okay.

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I'll restore some of your rebuttal.

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Okay.

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I apologize.

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I was talking to you, Ron, and I had you on mute.

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I apologize.

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Before you sit down, I have one question.

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With respect to your return mail issue,

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Do you agree that you would have to establish that kinetic systems lawyers were acting as agents for the government in order to prevail on that issue?

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Well, to be frank about it, we haven't done a lot of research into what identifying kinetics as an agent means, whether that supports or hurts our position.

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I think it would help.

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I think it would help.

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I think it's clear, though, regardless of what you call kinetics, whether it's agent or indemnifier, it's clear that kinetics has indicated they are representing the government.

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That's been clear.

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In their first petition in re-exam, they clearly said that.

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They are representing the government.

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This is Judge Wallach.

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What authority do you have for arguing that indemnification is the same as being the government?

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Well, again, we haven't done a lot of legal research on that issue, to be quite frank about it.

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So right now, I would say we don't have any legal authority to do that.

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legal case law to support that right now.

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Thank you for your... Okay, counsel.

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I'll give you three minutes for rebuttal.

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We've gone way over.

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So let's hear from the other side.

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Okay.

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Ms.

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Kelly?

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Good morning, Your Honors.

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May it please the Court?

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I'd like to begin by addressing this issue of the Wikipedia page and the plumbing code.

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that Judge Wallach asked opposing counsel about.

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Even if we assume that the Wikipedia page is valid and accurate, there are at least four reasons why that doesn't save this argument that opposing counsel has made.

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Yes, both references instruct the way a trap works, a seal trap works, but neither reference says that those are part of an SBS or a necessary addition to an SBS.

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And in fact, if you look at the Wikipedia article, and that would be at record 2282,

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It's difficult to see in the reproduction in the joint appendix.

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But in the original article, if you look to the figure there, the soil vent stack is shown in green, and the traps are shown in white.

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So the soil vent stack is the middle, the big middle pipe.

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And those U-shaped traps are attached to plumbing fixtures like toilets and sinks.

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And those are referred to, if you look further down on 2282, and in the figure, as being separate.

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The trap is separate from the soil stack.

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And they're described that through traps, all fixtures are connected to waste lines, which in turn take the waste to the soil stack or soil vent pipe.

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So this reference indicates

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that the soil, sorry, the trap is not part of the soil vent stack, but something that also that feeds into it.

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Then I'd like to point out when you're looking at this figure, an oral argument opposing council represented that the filter would appear at the top of this soil vent stack before any sort of vapors or anything are released into the environment.

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And if you look

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page 2283 of the Wikipedia article, opposing counsel was aware, I'm sorry, a person of ordinary skill in the art was aware that you could have these differential problems and they knew how to solve it.

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If you look at the last sentence of the fourth paragraph down, it says,

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that because of this problem, tall buildings of three or more stories are particularly susceptible to this problem.

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Vent stacks are installed in parallel to waste stacks to allow proper venting in tall buildings.

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I would submit, Your Honor, that the application here is directed not to home filtration, but to use as indicated in the specification in hospitals and industrial buildings.

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And what this shows is that a person of an ordinary skill in the art, if using soil event stack in combination with these sorts of traps, would know how to resolve that.

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In addition... No, this is sprawling.

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Same question.

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How are you relying on Wikipedia?

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I'm not relying on Wikipedia.

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What I'm doing is rebutting this notion

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that opposing counsel has presented, both before the board and here, that this sort of seal trap is part of the soil vent stack.

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They simply haven't shown that a soil vent stack must include a seal trap.

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And the fourth point that I was going to make, at oral argument,

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opposing counsel was specifically asked by one of the judges why a person of ordinary skill in the art, if knowing about the way that traps work and if assuming that a soil vent stack must be used in combination with such a trap, and Mason and Pittman used these pressures to move air through the filter, why they wouldn't know how to adjust this or solve this

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problem of pressures with the soil vent stack.

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And so if you look at page 221 of the record, policy councils asked this question.

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And if you look at lines 2 through 13, you see that Mr. Curtin explains that he's not qualified to answer that question.

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He was specifically asked why a person of ordinary skill in the art wouldn't be able to compensate for any pressure differences if Mason and Pittman, including their fans or the ways of moving air through the filter apparatus, were used in combination with a soil event stack and this trap seal, why a person of ordinary skill in the art wouldn't be able to correct any problems.

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And he said he wasn't qualified to answer that question.

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There's simply nothing in the record that supports this sort of notion that mason and pitman could not be used in combination with the soil vent stack.

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Does the claim one, in your view, require a soil vent stack as part of the claim dimension?

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In my view, no.

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It just explains that it must be used in combination with the soil vent stack.

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And here's why.

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Because the soil event stack is never referred to in the body of the claims, there's no structure defined for it, not only in the claims, but in the entirety of the 340 patent.

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And thus, under this court's standard law, that is just an intended use, and it is not a patentable distinction.

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I think the board was trying to be generous here because, you know, there was the issue of abandonment, revival, and then all of the petitions about the late submitted declarations.

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I think the board was trying to be kind to Schopf by entertaining this notion that it was somehow part of the claim.

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Ms.

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Kelly, this is Judge Toronto.

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I just want to be clear.

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You don't think it made any difference that the claim, what is now claim one, doesn't use the original language of for use with, but now actually says in combination with this oil vent stack, a filtration apparatus?

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I don't because there's no description of the structure of in combination.

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But even so, again, there's simply no evidence that a mason-pitman combination couldn't be used with a soil vent stack.

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In fact, mason says it's used with an emission stack.

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Let me step back for a moment.

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That amendment was made after final, so it was coming to the board sort of afresh, which is why I indicated I think the board wanted to give shop some resolution of this matter.

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And so there simply wasn't anything in the record to indicate that Mason's emissions stack wasn't a soil events stack.

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And Mr. Curtin said, oh, because these soil bed stacks must have these trap seals.

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And I think the board was trying to address that sort of argument and didn't state the law as we really all know it, which is that if you want something to be part of your claim, then you need to describe it in your claim.

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And you need to describe it either in terms of structure or function.

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neither of which were done in this claim, whether we use for youth with or in combination with language.

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Can I turn to the valve means your friend on the other side argues that they all along contended that there were two separate functions that they were pointing to.

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Do you agree with that?

[00:24:26] Speaker 02:
I do not agree with that, and I think

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I think that my friend has essentially admitted that.

[00:24:36] Speaker 02:
Your honor, yourself, asked where in the record they made such an argument and he couldn't produce that.

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But even so, also tellingly, he has not produced any evidence.

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Neither the Hale Declaration or the Manetti Declaration state that a pneumatic valve like that disclosed in Pittman

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could not be used to perform the claimed function.

[00:25:05] Speaker 03:
Do you agree with Shuff's argument that Pittman's valves would need to perform the identical functions of valve means in substantially the same way with substantially the same result as ball valves?

[00:25:18] Speaker 02:
Yes, but with a qualification.

[00:25:20] Speaker 02:
When someone claims a portion of an invention, a limitation in means plus function,

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means plus function terms, what they do is in exchange for having breadth of their claims so that their claims can cover other embodiments not specifically recited in their claims, they lose the ability to say that you need to prove that something is exactly the equivalent structure or function of the things that are recited in your specification.

[00:25:58] Speaker 02:
What you are limited to are the functions, any structures that can form the functions recited in your claims.

[00:26:05] Speaker 02:
And the functions here are controlling and stopping, you know, closing and controlling flow.

[00:26:17] Speaker 02:
So there simply is no evidence that a pneumatic valve couldn't do that.

[00:26:25] Speaker 02:
The declarations submitted by Schopf merely show that a person of ordinary skill, at best, that a person of ordinary skill would have preferred something like a valve valve to control, sorry.

[00:26:38] Speaker 02:
They don't mention, first of all, controlling flow, but they do, I think one of them states a preference for a valve valve over another, but it doesn't state that they can't be used

[00:26:53] Speaker 02:
regulate flow.

[00:26:55] Speaker 02:
I mean, certainly you could open and close a ball valve.

[00:26:58] Speaker 02:
All they say is that, I'm sorry, a pneumatic valve.

[00:27:03] Speaker 02:
All those declarations say is that pneumatic valves cannot close the way a ball valve will with 100% leakage protection and that they cannot continue to function.

[00:27:19] Speaker 02:
They have the sort of long-term longevity

[00:27:23] Speaker 02:
I'm sorry, that was redundant, that they don't have the sort of longevity that ball valves do.

[00:27:29] Speaker 02:
However, there is no requirement in the claim that the valves have a certain lifetime.

[00:27:36] Speaker 02:
And certainly the fact that ball valves can stop flow and have been used in the art for more than 50, I misspoke ball valves, I meant to say pneumatic valves have been used in the art to stop flow.

[00:27:51] Speaker 02:
for more than 50 years in this very type of setup is indication that they can stop the flow.

[00:27:59] Speaker 03:
So... Okay, let me switch gears on the 959.

[00:28:05] Speaker 03:
Did the board ever actually construe decontaminate?

[00:28:12] Speaker 02:
What they did was they looked at

[00:28:19] Speaker 03:
Was that a yes or a no?

[00:28:20] Speaker 03:
They did construe it or they didn't construe it?

[00:28:23] Speaker 02:
Well, they construe decontamination in combination with the whereby clause that, in combination with the whereby clause so that any contaminants are removed.

[00:28:40] Speaker 03:
All right.

[00:28:40] Speaker 03:
Do you think the board actually adopted the definition of a HEPA filter?

[00:28:45] Speaker 03:
in Mason as its construction of decontaminate?

[00:28:51] Speaker 02:
No.

[00:28:52] Speaker 02:
What they said was the board's construction was that a biological filter could decontaminate means that the gas or liquid is substantially freed of contaminants.

[00:29:06] Speaker 02:
And so what they did was then make a factual finding that Mason's HEPA filter would

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would decontaminate or produce a gas or a liquid that was substantially freed of contaminants?

[00:29:25] Speaker 02:
Okay, go ahead.

[00:29:27] Speaker 02:
Oh no, I just was wondering, did that answer your question or did it?

[00:29:32] Speaker 02:
Yes, it did.

[00:29:38] Speaker 02:
So in the case of

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The 340 patent, I think we've addressed about the valve questions and the questions about the soil vent stack.

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And for the 959 patent, I believe that your honors are aware of our position as to the filter means.

[00:30:07] Speaker 02:
If you have no further questions, I thank you for your time.

[00:30:10] Speaker 03:
Let me just ask you one last thing since we went over for the other side, and that is in the normal circumstance where a government contractor is acting on behalf of the government, the government is the only proper party to a patent infringement proceeding.

[00:30:29] Speaker 03:
In this case, we have an indemnification contract.

[00:30:33] Speaker 03:
How does that indemnification contract then separate the

[00:30:41] Speaker 03:
the person indemnifying the government from the true interests of the government itself?

[00:30:48] Speaker 02:
If you look to the actual contract, all the contract says is that the subcontractor in this case, Kinetic, who is now really one party removed from the government,

[00:31:03] Speaker 02:
along with the contractor must indemnify the government in an infringement action.

[00:31:12] Speaker 02:
And it doesn't say anything about what other actions the contractor or subcontractor can or must or should take in some other sort of forum.

[00:31:30] Speaker 02:
And this is a completely separate situation.

[00:31:34] Speaker 02:
And that kinetic chose to do this on its own, regardless of its choice of wording when it filed its re-examination request.

[00:31:44] Speaker 02:
It wasn't, there's no evidence, and it was shop-burdened to produce that sort of evidence, that they were acting on behalf of the United States government.

[00:31:55] Speaker 02:
Okay.

[00:31:56] Speaker 02:
Thank you.

[00:31:56] Speaker 02:
Thank you.

[00:31:57] Speaker 03:
Okay.

[00:31:59] Speaker 03:
Mr. Curtin?

[00:32:02] Speaker 05:
Yes, Your Honor.

[00:32:04] Speaker 05:
So let me address the argument Council raised that there's no evidence that traps are not part of a soil bed stack.

[00:32:14] Speaker 05:
That's wrong.

[00:32:16] Speaker 05:
We submitted expert declarations directly on point that said trap seals are a part of a soil bed stack.

[00:32:25] Speaker 05:
The examiner would not enter those declarations.

[00:32:31] Speaker 05:
We petitioned.

[00:32:33] Speaker 05:
It was denied.

[00:32:34] Speaker 05:
We filed an offer of proof.

[00:32:37] Speaker 05:
The PCAP wouldn't consider it.

[00:32:40] Speaker 03:
It is part of the record, though.

[00:32:41] Speaker 03:
Our offer of proof is pages... But isn't it because they were untimely that they didn't consider it?

[00:32:49] Speaker 05:
No.

[00:32:50] Speaker 05:
No.

[00:32:51] Speaker 05:
No.

[00:32:52] Speaker 05:
The basic... This issue arose... We submitted the Wikipedia page.

[00:33:02] Speaker 05:
The examiner rejected it.

[00:33:05] Speaker 05:
in her final office action, she rejected it.

[00:33:09] Speaker 05:
We didn't submitted expert declarations that said what's in the wikipedia page is correct, and what further addressed the National Appointment Code, which clearly shows that Crap Steals are part of a stole bed staff.

[00:33:26] Speaker 05:
It's those after final declarations which she excluded.

[00:33:31] Speaker 05:
So they were part of the record originally.

[00:33:34] Speaker 05:
She excluded them because we didn't say to her, say to the examiner, sorry, why we could have produced them earlier.

[00:33:45] Speaker 05:
So examiners basically say, look, you should have produced your expert decorations right away, not the Wikipedia page.

[00:33:55] Speaker 05:
Well, you know, again, if there was some notice to us that you can't use Wikipedia, which happens all the time,

[00:34:04] Speaker 05:
because I do a lot of patent prosecution, both sides, the Patent Office and applicants use Wikipedia pages for definitions and for explanations.

[00:34:15] Speaker 05:
If there was some notice to us originally, can't use Wikipedia, fine.

[00:34:19] Speaker 05:
We would have used expert declarations right away.

[00:34:22] Speaker 05:
We had no notice of that.

[00:34:24] Speaker 05:
Once it was brought to our attention that the examiner was questioning Wikipedia, we submitted the declarations.

[00:34:31] Speaker 05:
She refused to

[00:34:32] Speaker 05:
to enter them because we didn't give a reason why we couldn't have submitted them before.

[00:34:38] Speaker 05:
Well, we didn't know that she was going to exclude a Wikipedia pitch.

[00:34:41] Speaker 05:
So, in any event, we appeal, sorry, we petitioned all the way to the petition branch.

[00:34:45] Speaker 05:
Okay.

[00:34:46] Speaker 03:
Council, I think if there's anything else you want to get to on your rebuttal, you should do that.

[00:34:50] Speaker 05:
Okay.

[00:34:50] Speaker 05:
Well, again, our offer of food clearly shows that trap seals are a part of a soil bed stack.

[00:34:59] Speaker 05:
Clearly shows.

[00:35:03] Speaker 03:
Go ahead, any final words?

[00:35:08] Speaker 05:
Yes.

[00:35:09] Speaker 05:
Council says there's no evidence.

[00:35:12] Speaker 05:
We haven't been provided, you know, with respect to the return mail indemnification.

[00:35:19] Speaker 05:
There's no opportunity for us to collect evidence from kinetics.

[00:35:25] Speaker 05:
There's no way to get evidence from kinetics during ex parte re-examination.

[00:35:29] Speaker 05:
How are we going to get evidence?

[00:35:30] Speaker 05:
All we can get is what's been filed in the Court of Federal Claims case.

[00:35:34] Speaker 05:
If this court wants to grant us the time to take discovery, we'd be happy to do that.

[00:35:42] Speaker 05:
But there's no way for us to get discovery from kinetics in ex parte re-examination.

[00:35:48] Speaker 05:
So that's a non-starter.

[00:35:52] Speaker 05:
I'm sure if we had the opportunity to get discovery, we would get that discovery that would conclude that in fact... Okay, Council, we're beyond time here.

[00:36:07] Speaker 00:
Thank you very much.

[00:36:08] Speaker 03:
Okay.

[00:36:09] Speaker 03:
Thank you.

[00:36:09] Speaker 03:
The case will be submitted.