[00:00:00] Speaker 04:
The next case for argument is 192007, Lear Technologies versus Parker Intangibles.

[00:00:09] Speaker 04:
Mr. Manzo, whenever you're ready.

[00:00:13] Speaker 01:
Good morning, Your Honors.

[00:00:15] Speaker 01:
May I raise the court?

[00:00:17] Speaker 01:
I hope my volume is appropriate.

[00:00:22] Speaker 01:
I would like to focus this morning on two of the main errors in this case.

[00:00:26] Speaker 01:
One of them is factual.

[00:00:27] Speaker 01:
The other one is legal.

[00:00:29] Speaker 01:
On the factual side, the board's finding that the prior art did not disclose dispensing a fully cured product with no appreciable further curing is not supported by substantial evidence.

[00:00:41] Speaker 01:
Because regardless of whether our references like Vias also showed dispensing material before it is finished curing, it definitely showed dispensing after it is finished curing.

[00:00:54] Speaker 01:
Moreover, even if the board's finding that Vias was ambiguous,

[00:01:00] Speaker 01:
If that were correct, and we say it is not, because bias clearly disclosed dispensing after curing, the board failed to conduct a proper obviousness analysis of whether it would have been obvious to a person of ordinary skill in the art to dispense after curing.

[00:01:18] Speaker 04:
Well, here's the problem I have with the case.

[00:01:22] Speaker 04:
That's not to say how any one of us, if we were hearing this case in the first instance as fact-finders, would have gone.

[00:01:30] Speaker 04:
But the board here obviously had a conflicting expert, people saying different things.

[00:01:37] Speaker 04:
And I'll just tell you straightforwardly that I think it's very difficult under substantial evidence review to dislodge that.

[00:01:48] Speaker 04:
When there's a conflict in the testimony, the board was trying to get to the bottom of it the best it could in terms of what the prior art just was.

[00:01:56] Speaker 04:
And as you say, it was in their view,

[00:02:00] Speaker 04:
at best ambiguous.

[00:02:02] Speaker 04:
So I guess I'm looking for some guidance from you as to how, as I said, on substantial evidence review, we are in a position to review the nuances of the prior art and dislodge the board's conclusions in that regard.

[00:02:21] Speaker 01:
Thank you, Your Honor.

[00:02:23] Speaker 01:
I have a twofold response.

[00:02:25] Speaker 01:
First is that the board

[00:02:28] Speaker 01:
pretty much ignored explicit disclosure in column three of the VIAS patent at appendix page 2140.

[00:02:38] Speaker 01:
It did not discuss that.

[00:02:39] Speaker 01:
But second, on obviousness, I will base my discussion on the admissions of both counsel, I mean of both experts.

[00:02:53] Speaker 01:
Parker's expert and Laird's expert,

[00:02:57] Speaker 01:
are in agreement that a supplier would not send a partially cured mixture to a user for dispensing.

[00:03:08] Speaker 01:
And they both agree that's commercially unacceptable.

[00:03:12] Speaker 01:
So in this case, even if bias is ambiguous, the board also found

[00:03:22] Speaker 02:
Well, why is that relevant to whether a prior reference teaches that its reference product doesn't have further appreciable curing after dispensing?

[00:03:37] Speaker 02:
And there are lots of patents that issue, I believe, sir, that have no commercial value.

[00:03:49] Speaker 02:
Your argument, I believe, is that

[00:03:52] Speaker 02:
Well, these products wouldn't have any commercial value if they had further appreciable curing after dispensing.

[00:03:59] Speaker 02:
So what?

[00:03:59] Speaker 02:
Why is that relevant to what Vias or Nugent teach?

[00:04:07] Speaker 01:
Vias does teach achieving full cross-linking.

[00:04:12] Speaker 01:
And he says so in column three.

[00:04:18] Speaker 01:
Appendix page 2140.

[00:04:19] Speaker 02:
Hang on a second.

[00:04:20] Speaker 01:
I've got my appendix.

[00:04:23] Speaker 01:
On what page is it, sir?

[00:04:24] Speaker 01:
2140, 2140, column 3.

[00:04:26] Speaker 01:
2140.

[00:04:27] Speaker 01:
Yes, 2140.

[00:04:43] Speaker 02:
Column 3, what line?

[00:04:47] Speaker 01:
The bottom paragraph, and specifically line 58.

[00:04:52] Speaker 01:
Which line, and specifically?

[00:04:55] Speaker 01:
Line 58, Your Honor.

[00:05:00] Speaker 01:
Just to briefly review this, in the first paragraph under the- That's talking about whether certain temperatures would interfere with full cross-linking.

[00:05:17] Speaker 02:
That's not saying that the product is necessarily fully grossed things.

[00:05:24] Speaker 01:
I think that this paragraph, the first paragraph under the formula says there was a problem with falling flakes.

[00:05:33] Speaker 02:
No, no, why don't you stick with this.

[00:05:34] Speaker 02:
This was your slam dunk winner, column three argument.

[00:05:39] Speaker 02:
I'm just testing you on it.

[00:05:41] Speaker 01:
I appreciate that.

[00:05:43] Speaker 01:
So in this article.

[00:05:45] Speaker 02:
So how are you doing with the test?

[00:05:49] Speaker 02:
I don't read line 58 to say that the product isn't necessarily fully cross-linked.

[00:05:55] Speaker 02:
It says if you heat it up enough, you can interfere with it.

[00:06:04] Speaker 01:
Am I wrong?

[00:06:05] Speaker 01:
Yes.

[00:06:05] Speaker 01:
And then he goes on to explain how he avoids and solves that problem.

[00:06:13] Speaker 01:
That's the remainder of the paragraph.

[00:06:17] Speaker 01:
Solves what?

[00:06:18] Speaker 01:
Solves what problem?

[00:06:23] Speaker 01:
Vias is explaining in that paragraph how he overcomes the problem of interference with full crosslinking of the polymer gel.

[00:06:33] Speaker 01:
And he is therefore clearly teaching that he achieved the goal.

[00:06:37] Speaker 02:
When you say clearly teaching, that clearly is a real strong word.

[00:06:42] Speaker 02:
He's saying if you want to interfere with full crosslinking, he's up too much.

[00:06:52] Speaker 02:
uh... i apologize you know i i don't i don't read his claim to have a heat limitation in it no i do not read the claim that way so your word you clearly is a too strong a word uh... i apologize then your honor you don't have to apologize you can agree or disagree with me all i'm doing is you came forward with a uh...

[00:07:19] Speaker 02:
LeBron James slam dunk winning basket at the buzzer, and I called you on it, which I think is fair.

[00:07:28] Speaker 01:
Fair enough, Judge.

[00:07:29] Speaker 02:
I think the slam dunk hit the rim and didn't go in.

[00:07:34] Speaker 02:
If I'm not mistaken, it's from your argument, because there's no heat limitation in the clay.

[00:07:41] Speaker 01:
The question is, what would this teach a person skilled in the art?

[00:07:46] Speaker 01:
And there is agreed evidence.

[00:07:48] Speaker 02:
And that's a fact question under the law.

[00:07:54] Speaker 02:
And the board heard your argument and came out against you.

[00:07:59] Speaker 01:
The board never conducted a proper obviousness analysis.

[00:08:04] Speaker 04:
Well, let me ask you about that.

[00:08:06] Speaker 04:
That's a different point.

[00:08:09] Speaker 04:
Yeah, but I mean, just to sort of tie Judge Clevenger's argument in, I mean, 8 through 12 through 17,

[00:08:18] Speaker 04:
is a very, seems to me, a very detailed analysis, citing to what the about bias, citing to what the expert said, the testing results, and all of this.

[00:08:30] Speaker 04:
So I'm not seeing that board, so what is improper about the analysis, the fulsome analysis, which it appears to me, with regard to evaluating what the reference says, what the various experts said about the reference, it seems quite fulsome to me.

[00:08:48] Speaker 04:
I mean, you may disagree with the outcome, but point me what in there is so bad, so wrong, so contrary to what our legal standards are that we would have a basis to reverse.

[00:09:03] Speaker 01:
The board sought an express statement of dispensing a fully cured product and said that bias was silent on that, but it is

[00:09:17] Speaker 01:
It is absolutely incontrovertible, and the board found that column two says that in a cured state, this mixture is dispensable.

[00:09:29] Speaker 04:
Why don't you tell me, pull up the board's opinion.

[00:09:32] Speaker 04:
The analysis is, I think, if you correct me if I'm wrong, 12 through pages, appendix 12 through 17.

[00:09:41] Speaker 04:
And then that they have a

[00:09:44] Speaker 04:
They have several paragraphs going on in detail and conclude that it was an ambiguous disclosure.

[00:09:56] Speaker 01:
Yes, Your Honor.

[00:09:59] Speaker 01:
This analysis fundamentally reads as a Section 102 analysis, not as a Section 103 analysis.

[00:10:09] Speaker 01:
The board says at the top of page 14, appendix page 14,

[00:10:14] Speaker 01:
The very last sentence.

[00:10:18] Speaker 01:
Go ahead.

[00:10:18] Speaker 01:
You can finish your answer.

[00:10:20] Speaker 01:
It says, vias itself is silent on this issue.

[00:10:24] Speaker 01:
It is very clear from column two that a person ordinarily skilled in the art would know and is taught that the vias composition is dispensable when cured.

[00:10:36] Speaker 01:
And column three of vias tells the posita that he is trying to achieve full cross-linking.

[00:10:44] Speaker 01:
Now, armed with that knowledge and the admissions of the opposing experts who are in agreement, there are only two choices.

[00:10:52] Speaker 01:
You either send a product to a customer that is fully cured or you send one that is not cured at all.

[00:10:59] Speaker 01:
And it would have been absolutely routine to relieve the user from the burden of mixing together the five parts that Vias mixes together and send the user

[00:11:13] Speaker 01:
a fully mixed, fully cured product.

[00:11:16] Speaker 01:
Those are the only two choices, and the experts agree on that.

[00:11:21] Speaker 01:
The board never took up that question.

[00:11:23] Speaker 01:
It only considered whether VINUS explicitly discloses dispensing something that is fully cured before dispensing.

[00:11:35] Speaker 01:
It only talked about whether VINUS does or does not disclose, and it says it's ambiguous.

[00:11:42] Speaker 01:
Well, the problem is, even if it is ambiguous, there is still a disclosure and bias that you can have it cured and be dispensable.

[00:11:53] Speaker 01:
And that is the part on which we rely.

[00:11:56] Speaker 01:
The board never discusses that.

[00:11:58] Speaker 01:
It never conducted a full-up obviousness analysis.

[00:12:04] Speaker 04:
Well, let's save the remainder of your rebuttal when we hear from the other side.

[00:12:08] Speaker 04:
Thank you, Your Honor.

[00:12:09] Speaker 04:
Thank you.

[00:12:11] Speaker 04:
Mr. Lobson, when you're ready.

[00:12:14] Speaker 00:
Thank you, Your Honors.

[00:12:17] Speaker 00:
The board's fact findings regarding bias in UN are supported by substantial evidence and support affirmance.

[00:12:24] Speaker 00:
And I think the court identified the issues with Laird's argument that on appeal, Laird is offering disagreements with the board's findings, asking the court to reweigh evidence, arguing the record supports findings that the board did not make,

[00:12:39] Speaker 00:
and offering arguments that were not presented to the board or waived.

[00:12:45] Speaker 00:
And so this is not going to meet the standard of review.

[00:12:51] Speaker 00:
The board here carefully waived the evidence, including the prior art references, competing expert testimony from both parties, Laird's test evidence, and was entitled to make the findings that it did on Bias and Nguyen.

[00:13:10] Speaker 00:
I would like to respond to Council.

[00:13:15] Speaker 03:
Excuse me, this is Judge Stoll.

[00:13:16] Speaker 03:
I just wanted to ask you, I just heard the argument being made by the appellant that the board was really looking at this discussion at page A12 to 16 of the record was really making, looking at this as whether VS disclosed the limitation warrant in anticipation 102 cents.

[00:13:37] Speaker 03:
and wasn't considering the obviousness of the disclosure in VS and whether VS suggested this disclosure.

[00:13:43] Speaker 03:
What's your response to that?

[00:13:47] Speaker 00:
Well, you know, I disagree with that characterization.

[00:13:50] Speaker 00:
The board was conducting a 103 analysis, and I think it's important to look at what Laird argued in its petition for obviousness, and that's at Appendix 133 for VAES.

[00:14:05] Speaker 00:
And I'll read that.

[00:14:08] Speaker 00:
Because viases mixture is cross-linked and cured before dispensing, it would not exhibit further appreciable curing thereafter.

[00:14:16] Speaker 00:
It is already cured.

[00:14:19] Speaker 00:
This terse argument on this claim feature that the board found was dispositive was Laird's choice.

[00:14:28] Speaker 00:
Their position in the IPR on does not exhibit further appreciable curing

[00:14:33] Speaker 00:
was absolute.

[00:14:34] Speaker 00:
It was a material is cured or it is not, or a material is cross-linked or it is not.

[00:14:41] Speaker 00:
So bias is layered, relied solely on bias for the material properties of the compound recited in claim one of the 192 patents, and brought in a secondary reference Kalaninsky for the teaching of dispensing via an orifice.

[00:15:04] Speaker 00:
So the obvious in this case that Laird put before the board was very specific.

[00:15:10] Speaker 00:
And the board looked at the argument on bias and rejected Laird's position.

[00:15:17] Speaker 00:
And I think the record supports that finding.

[00:15:24] Speaker 00:
The board was entitled to weigh the competing expert testimony and credit Parker's expert.

[00:15:31] Speaker 00:
And that's entitled to deference.

[00:15:35] Speaker 03:
Thank you.

[00:15:37] Speaker 00:
I would like to turn to the admissions that Allard mentioned in its case in chief.

[00:15:43] Speaker 00:
And that really turns on a hypothetical question that Allard asked Parker's expert, Dr. Gattro.

[00:15:50] Speaker 00:
And it's quoted at RedBreeze 29.

[00:15:52] Speaker 00:
And this testimony happens to be at appendix 2488 and 2489.

[00:16:04] Speaker 00:
This testimony about, as a general proposition, how a manufacturer would not want to deliver product to customers in varying states of cure, Dr. Gattro agreed if the product was inconsistent to different customers.

[00:16:21] Speaker 00:
And there's several problems with this testimony, the way that Laird is heavily relying on it on appeal.

[00:16:30] Speaker 00:
First, the board explicitly considered and weighed

[00:16:33] Speaker 00:
this testimony in its analysis at appendix 12 and 14, and for Laird now to rely heavily on it is asking the court to reweigh the evidence.

[00:16:44] Speaker 00:
But on the substance, VAES does not describe how its material is provided to an end user.

[00:16:53] Speaker 00:
Their expert Hill admitted that.

[00:16:56] Speaker 00:
There's also no teaching in VAES about its material being a one-part system.

[00:17:01] Speaker 00:
Hill admitted that as well.

[00:17:03] Speaker 00:
This is that appendix 3885 and 3857.

[00:17:08] Speaker 00:
So it's this idea that the customer gets the viased material in a single tube and is ready to use it.

[00:17:14] Speaker 00:
And so all of Laird's arguments about commercial applicability presume that there's a teaching that this is going to be a single-part system to a customer, and it's just not there.

[00:17:31] Speaker 00:
Parker's expert agreed that that bias does not describe providing an end user with a fully mixed composition.

[00:17:40] Speaker 00:
And so that's the problem, not only with this heavy reliance on this, what Laird is saying is an admission, but also with these scenarios that Laird pursues in its briefing, that there's only four of them and that they only point to Laird winning the case.

[00:18:00] Speaker 00:
They all, again, presuppose a manufacturer and a customer and presuppose that Viya teaches a one-part system.

[00:18:10] Speaker 02:
Mr. Lobson, Judge Clever, can I ask a question for a point of information, please?

[00:18:16] Speaker 02:
As I understand the claim in the 192, cured or fully cured means that the material after dispensing doesn't exhibit further curing.

[00:18:30] Speaker 02:
But it provides that a fully cured product can still develop further curing as they normally develop upon aging.

[00:18:43] Speaker 02:
So there seems to be a concession in the definition that although something might be viewed as cured, it can have further curing due to aging.

[00:18:55] Speaker 02:
Am I correct about that?

[00:18:57] Speaker 00:
Yes, Your Honor, the board's construction is at Appendix 7 and relies on definition.

[00:19:05] Speaker 02:
Well, relies on the specific definition in the patent.

[00:19:08] Speaker 02:
My question is, how do you decide if there's additional curing, whether it's as a result of aging or otherwise?

[00:19:20] Speaker 02:
The curing stops in a minute.

[00:19:24] Speaker 02:
How is a person who's got a product, who's a competitor, trying to decide whether or not you infringe, if you have some further curing, is it due to aging or otherwise?

[00:19:34] Speaker 02:
How do you know?

[00:19:37] Speaker 00:
Well, Your Honor, I think you'd look at the text of the 192 patent and look at the curing chemistry.

[00:19:45] Speaker 02:
What kind of curing occurs during aging?

[00:19:53] Speaker 00:
So as the material proceeds through time, that's an oxidation reaction.

[00:20:02] Speaker 00:
That would be with respect to aging.

[00:20:04] Speaker 00:
If we look at heat, for example, during thermal cycling, which is Nguyen is one of the references that describes that, that would not be at room temperature.

[00:20:16] Speaker 00:
And that would not be a normal reaction through oxidation.

[00:20:23] Speaker 00:
I would like to go back to the board's constructions of cured and does not exhibit further appreciable curing.

[00:20:32] Speaker 00:
You know, they're not challenged in a meaningful way in this appeal.

[00:20:37] Speaker 00:
Laird did not offer a construction of does not exhibit further appreciable curing.

[00:20:42] Speaker 00:
Laird agreed with the definition of cured in the specification in its petition.

[00:20:51] Speaker 00:
So we are here with the board's construction being unchallenged in this appeal.

[00:21:00] Speaker 02:
Oh, OK.

[00:21:01] Speaker 02:
Thank you.

[00:21:07] Speaker 00:
I would like to emphasize another fact finding that the

[00:21:14] Speaker 00:
that the board made in its analysis at 12-14, this idea that curing is not a binary process, it's a progression.

[00:21:24] Speaker 00:
And that is at appendix 14 and 15.

[00:21:31] Speaker 00:
And that robust layered position in the IPR that cured means does not exhibit further appreciable

[00:21:38] Speaker 00:
cross-linked means does not exhibit further appreciable curing.

[00:21:43] Speaker 00:
And Laird doesn't challenge that technical fact-finding is lacking substantial evidence.

[00:21:50] Speaker 00:
And the board, you know, in its analysis weighed the evidence.

[00:21:55] Speaker 00:
It explicitly noted some evidence supported Laird's position that cured means does not exhibit further appreciable curing.

[00:22:03] Speaker 00:
And it noted evidence supporting the opposite view that cured does not mean

[00:22:08] Speaker 00:
does not exhibit further appreciable curing.

[00:22:13] Speaker 00:
So again, the board was entitled to weigh this testimony and make the fact finding that Blair did not prove his case with respect to bias in New Year.

[00:22:32] Speaker 04:
Anything further?

[00:22:36] Speaker 00:
So, Your Honor, if there are no questions with respect to Nguyen or simultaneous invention, I'd rest on the briefing for those issues.

[00:22:46] Speaker 00:
And I would briefly touch on Layers 28J letter.

[00:22:52] Speaker 00:
They submitted that letter post briefing citing two cases, which we think are distinguishable.

[00:22:59] Speaker 00:
The Uber case involved a person of skill in the arts motivations to combine certain teachings.

[00:23:07] Speaker 00:
And there, there was no dispute about what the references taught.

[00:23:11] Speaker 00:
Whereas here, we're dealing with the issue of whether a prior art reference teaches a certain claim teacher and the knowledge of a person of skill in the art in view of that teaching.

[00:23:22] Speaker 00:
And the other case cited by Laird, the TCP case, that case involved a claim construction error in an anticipation analysis.

[00:23:30] Speaker 00:
And that's unlike the case here.

[00:23:33] Speaker 00:
We've discussed the claim construction, and Laird has waived challenging the board's explicit claim constructions of a cured and does not exhibit further appreciable curing.

[00:23:43] Speaker 00:
So if there are no further questions for the court, we submit that the board's judgment should be affirmed.

[00:23:51] Speaker 04:
Thank you.

[00:23:57] Speaker 04:
Mr. Manso, you've got some rebuttal time.

[00:23:59] Speaker 01:
Thank you, Your Honors.

[00:24:04] Speaker 01:
It seems here that column three talks about how to avoid the interference with full cross-linking in bias.

[00:24:15] Speaker 01:
The board plant construction says curing means no more cross-linking and other things, polymerization, vulcanization.

[00:24:25] Speaker 01:
But when there's full cross-linking and there's no more cross-linking, the last element of the claim is met.

[00:24:31] Speaker 01:
Now that, that taught the ProSita that you can't be sending products.

[00:24:41] Speaker 01:
Well, that, excuse me, that taught the ProSita that Vias teaches a fully cured product.

[00:24:47] Speaker 01:
Now, if there's ambiguity about when Vias dispenses, that's one thing.

[00:24:52] Speaker 01:
But it is beyond challenge.

[00:24:54] Speaker 01:
I think that bias teaches how to avoid the interference with full cross-linking.

[00:25:04] Speaker 01:
The evidence after that is undisputed.

[00:25:06] Speaker 01:
The experts are in agreement.

[00:25:09] Speaker 01:
And it doesn't matter whether bias says it's a one part system or a two part system.

[00:25:15] Speaker 01:
The question is, what would this disclosure have meant to a person ordinarily skilled in the art?

[00:25:20] Speaker 01:
I don't have to show an identical disclosure in the reference.

[00:25:24] Speaker 01:
The posita is not an automaton, in the words of KSR.

[00:25:29] Speaker 01:
And especially in this case, where there are only two choices that are open to the posita.

[00:25:36] Speaker 01:
Either the posita sends a fully cured product, which means no more full, which means it's fully cross-linked, or he sends a kit.

[00:25:46] Speaker 01:
And there are many reasons not to send a kit.

[00:25:48] Speaker 01:
You're putting the burden on the user to blend these five things together in a certain way and come out with a certain product.

[00:25:58] Speaker 01:
The board never addressed that.

[00:26:00] Speaker 01:
It is true that the board noted that the experts did agree on some things, but it never conducted a proper obviousness analysis.

[00:26:08] Speaker 01:
And that is a reversible error of law.

[00:26:19] Speaker 04:
Okay.

[00:26:21] Speaker 04:
That concludes the, did you have any, another point to make?

[00:26:26] Speaker 01:
No, I, I, I can give you the citations if you wish to the record of where the experts are in agreement if you want to jot them down.

[00:26:35] Speaker 04:
I assume it's in your brief.

[00:26:37] Speaker 01:
Of course it is.

[00:26:39] Speaker 01:
Blue brief at page 47 to 48.

[00:26:40] Speaker 01:
Okay.

[00:26:43] Speaker 01:
Thank you.

[00:26:45] Speaker 04:
We thank both sides and the case is submitted.