[00:00:00] Speaker 03: Good morning, everyone. [00:00:03] Speaker 03: The first argued case this morning is number 192108, St. [00:00:07] Speaker 03: Jude Medical LLC against Snider's Heartbound LLC. [00:00:12] Speaker 03: Mr. O'Quinn. [00:00:15] Speaker 02: Thank you, Judge Newman, and may it please the court, John O'Quinn, on behalf of St. [00:00:19] Speaker 02: Jude. [00:00:20] Speaker 02: Although the board properly invalidated some claims of the 7-8-2 patent, it committed three series of errors that require remand, if not outright reversal, as to other claims. [00:00:29] Speaker 02: I'd like to briefly address Bezler's anticipation of Claim 28, and then turn to anticipation by Leonhart, and then business. [00:00:38] Speaker 02: Bezler discloses the elongated manipulator of Claim 28, and the board's decision to the contrary is both substantively and procedurally flawed. [00:00:45] Speaker 04: Mr. O'Quinn, can I ask you this question? [00:00:48] Speaker 04: This is Judge Toronto. [00:00:50] Speaker 04: I'm trying to understand, maybe you can clarify, how this argument relates to [00:00:57] Speaker 04: the cross-appeal argument that challenges the finding by the board that Bessler teaches, among other things, leaving the native valve in place. [00:01:12] Speaker 04: And here's, I guess, a very particular question. [00:01:15] Speaker 04: Assume, I know you disagree, but assume for a moment that I were to think that Snyders is right about [00:01:26] Speaker 04: its challenge to the board on that, so that Bessler does not teach the elements of leaving the valve in place. [00:01:39] Speaker 04: At that point, for anticipation purposes, as to Claim 28, does the manipulator issue drop away? [00:01:50] Speaker 02: So, Judge Taranto, two points. [00:01:51] Speaker 02: First, I think if you were to agree with [00:01:54] Speaker 02: Snyders as to the claim construction issue vis-a-vis size and shape for insertion in a position. [00:02:01] Speaker 02: I think that that would not result in a decision that there can be no anticipation. [00:02:08] Speaker 02: I think at most that would result in a remand among for the board to consider whether there could still be anticipation because among other reasons, if you look at the 7-8-2 patent and the sizes it discloses, it's between 2 and 3 centimeters or 3 and 5. [00:02:24] Speaker 02: centimeters, as you can see at appendix 108, whereas Bezler's size is only from 1.5 to 3.5 centimeters, and preferably between 1 and 3 quarters and 3, as you can see at appendix 1373. [00:02:36] Speaker 02: So, there'd be a fat dispute over whether Bezler's valve is sized in shape or insertion for a much larger space. [00:02:45] Speaker 02: So I think it would just result in a remand, not a reversal. [00:02:49] Speaker 02: And that would make this issue still a live issue on anticipation vis-a-vis the manipulator, because this goes to a separate claim limitation, separate apart from those limitations relating to the valve itself with respect to claim 28. [00:03:06] Speaker 02: But if you obviously disagreed and thought that the Snyders was entitled to a reversal and a holding, despite the fact that I think there are disputed fact issues, [00:03:15] Speaker 02: then it would effectively move this issue. [00:03:19] Speaker 04: And then what would be left then on Claim 28? [00:03:21] Speaker 04: It would be the obviousness. [00:03:24] Speaker 02: There would be two things on Claim 28. [00:03:26] Speaker 02: There would be obviousness and there would also be anticipation by Leonhart. [00:03:30] Speaker 02: The arguments that they've made on their cross appeal about size and shape do not apply in the proceeding, the 705 proceeding involving the Leonhart reference. [00:03:44] Speaker 02: The arguments there that we would still be entitled for a remand for the board to consider anticipation by Leonhart would still be active for the board on remand if the court agreed with us on Leonhart. [00:04:01] Speaker 02: So with that, let me just very briefly say that these are the, I'm sorry, I said 705 proceeding, I meant the 105 proceeding. [00:04:12] Speaker 02: But let me just very briefly [00:04:14] Speaker 02: says that St. [00:04:16] Speaker 02: Jude presented uncontroverted evidence at Appendix 3684 that the proximal end of the catheter is, quote, used to position the distal holder. [00:04:25] Speaker 02: In other words, one end of the catheter is used to position the other end. [00:04:29] Speaker 02: And that is true whether or not the catheter is also threaded over a guide wire. [00:04:34] Speaker 02: Indeed, Siders never suggested in the proceedings below that Bezler somehow lacked a manipulator simply because Bezler can use a guide wire. [00:04:42] Speaker 02: And with good reason. [00:04:43] Speaker 02: The implantation instruments of the 7-8-2 patent in Bezler are for all practical purposes the same. [00:04:49] Speaker 02: The 7-8-2 patent describes the same features, including an optional guide wire at appendix 109 explaining that the manipulator is pushed or pulled over the guide wire. [00:05:00] Speaker 02: And nothing in Bezler suggests that a guide wire is mutually exclusive. [00:05:04] Speaker 05: Mr. Oakley, did you make these arguments in your petition? [00:05:08] Speaker 02: What we did, Judge O'Malley, you can see at Appendix 2906 and referencing, among other things, referencing Dr. Dossi's declaration at Appendix 3684. [00:05:25] Speaker 02: But the point that the other end of the catheter, and that's what you're talking about. [00:05:29] Speaker 02: It's a long, flexible tube. [00:05:31] Speaker 02: One end is used to manipulate the other. [00:05:33] Speaker 02: And the point that one end of the catheter was [00:05:37] Speaker 02: the manipulator of the other end was made in the petition at 2906. [00:05:42] Speaker 02: Yet the board decided without any argument from Snyders and without raising the issue at the oral hearing that just because Besler disclosed a guide wire, that that meant that he did not disclose that one end of the catheter could manipulate the other. [00:05:56] Speaker 02: So that's not supported by substantial evidence. [00:05:59] Speaker 02: At a minimum, it requires a remand. [00:06:01] Speaker 02: When you look at Besler on its face, [00:06:03] Speaker 02: I think that it requires an outright reversal as to that issue. [00:06:07] Speaker 02: And at a minimum, what the board did here is exactly what this court said it can't do in cases like Dell, Sass, Newvasive, and Magnum Oil. [00:06:16] Speaker 02: But unless the court has further questions on this, let me turn to anticipation by Leonhardt, which, as I said, is not affected by the cross appeal. [00:06:26] Speaker 02: So turning to Leonhardt, the board erred in its treatment of the band limitation, reading in a linked dimension [00:06:33] Speaker 02: nowhere contemplated in the claims or specifications. [00:06:36] Speaker 02: Quite the opposite. [00:06:37] Speaker 02: Under the broadest reasonable interpretation, it is simply not reasonable. [00:06:43] Speaker 04: Let me just pose the following and ask you to address it. [00:06:52] Speaker 04: You propose in your claim construction circular strip or ring. [00:06:58] Speaker 04: The board said circular is a little bit too limiting because while the thing has to go around, it doesn't have to be circular, it can be ovate. [00:07:07] Speaker 04: So it said closed strip or ring. [00:07:11] Speaker 04: What's wrong with saying it is plain on the face of use of words like strip or ring that there's uncertainty, not lack of restriction, but uncertainty about the length [00:07:27] Speaker 04: of this thing, which ordinarily we would call width, but in patent terms it's length, how extended it is rather than the circumference. [00:07:39] Speaker 04: And in the face of a plain uncertainty about where a strip and ring gets too long to be considered that, that you were effectively acknowledging that [00:07:54] Speaker 04: what was left was a skilled artisan application of that facially uncertain term and then there was substantial evidence for the board to apply the facially uncertain term and it wasn't changing the claim construction. [00:08:11] Speaker 02: Well, just Toronto, a couple of points. [00:08:14] Speaker 02: I think first, the board itself [00:08:17] Speaker 02: I think recognize that this really ultimately is an issue vis-a-vis claim construction. [00:08:25] Speaker 02: And indeed, the Board in commenting on Snyder's argument at Appendix 13 that this was not a ban but more like a sleeve, quote, seemingly cast doubt on petitioners' construction. [00:08:39] Speaker 02: And it may be that there are some issues [00:08:42] Speaker 02: where you reach a point where it is as defined as it can be for purposes of the patent, but the board certainly didn't come to that conclusion here, and there's nothing about the term. [00:08:53] Speaker 05: No, but Mr. Quinn, that site, though, to Appendix 13, the board wasn't saying that it was adopting a different construction. [00:09:01] Speaker 05: It was saying that you were attempting to adopt a different construction, and it adopted the one you proposed, but then it applied that construction [00:09:12] Speaker 05: to the reference in front of it and found, as a matter of fact, that it didn't satisfy the construction. [00:09:19] Speaker 02: Isn't that right? [00:09:21] Speaker 02: Well, not quite, Judge O'Malley. [00:09:22] Speaker 02: I think first, what the board was commenting on was Snyder's arguments on the facts. [00:09:30] Speaker 02: Snyder's was not itself offering any type of claim construction. [00:09:33] Speaker 02: The claim construction that we argued was the claim construction that Snyder's had offered in the district court proceeding. [00:09:40] Speaker 02: And in the PTAB, Snyders was trying to tack in the opposite direction. [00:09:44] Speaker 02: It didn't offer a claim construction as such. [00:09:46] Speaker 02: And the board commented that its argument on the facts, that's what it's saying at page 13, seemingly cast doubt on the construction that we had offered in front of the PTAB, that is the strip or ring construction. [00:10:01] Speaker 02: And so this court, of course, has recognized that in cases like Corning versus Fast Felt, [00:10:08] Speaker 02: that when the board requires more than what its explicit construction requires, that is implicitly adopting a new construction, and it's reviewed de novo. [00:10:19] Speaker 02: And that's exactly here, what happened here. [00:10:22] Speaker 02: The board adopted an express construction, generally referring to the shape of a closed strip or ring, but then it added more to it. [00:10:32] Speaker 02: It says it has to be a particular length or it can't be more than some length, [00:10:36] Speaker 02: some undefined link. [00:10:39] Speaker 05: Is it your view, Mr. O'Quinn, that every time a tribunal explains its reasoning for why it doesn't, as a matter of fact, find that something meets a claim construction, that it has somehow altered the claim construction? [00:10:57] Speaker 02: Well, no, Judge O'Malley. [00:10:59] Speaker 02: It's just a question of whether or not the explanation [00:11:02] Speaker 02: shows that it has added something beyond what the express construction required. [00:11:08] Speaker 02: And that was the concern expressed in cases like, as I said, Corning v. Fastfeld, the Respironics case, Henry Abbott Diabetes, and Google v. Lee, where the court found that it committed, the board had committed plain legal error by importing an unrecited limitation [00:11:28] Speaker 02: in the process of evaluating the patentability. [00:11:32] Speaker 05: But the board just said it's not a ring. [00:11:35] Speaker 05: I mean look at it and as a matter of fact we look at it and we don't think it's a ring or a band. [00:11:44] Speaker 02: The construction is not limited to a ring. [00:11:47] Speaker 02: It refers to the shape of a closed stripper ring and whether or not something is a strip [00:11:54] Speaker 02: doesn't limit what we're referring to here as the length dimension. [00:11:58] Speaker 02: Indeed, when somebody refers to a narrow strip of land, that's not redundant. [00:12:03] Speaker 02: And here, fundamentally, the dispute is about whether a band must be limited in its length. [00:12:09] Speaker 02: And that is, quintessentially, an issue of claim construction. [00:12:13] Speaker 02: It goes to what the term band actually means. [00:12:17] Speaker 02: And in this case, despite the specification, which says a band can be, quote, substantially [00:12:22] Speaker 02: cylindrical, the board imported a length limitation. [00:12:27] Speaker 04: I see that I... Mr. McClain, can I just ask you a factual question? [00:12:32] Speaker 04: Does anything in the 7-8-2 patent tell us or anything in the record tell us the rough overall length of this valve and stent structure? [00:12:48] Speaker 04: Just Toronto, I don't know that there's anything in the patent that does so numerically, but I think that if you refer, for example, to figure six of the patent, which is an appendix level... Right, that's exactly what I'm thinking about, that that's where the word length comes in and it contemplates for one of the two bands a length that might be 12 centimeters, about five inches. [00:13:14] Speaker 04: How does that [00:13:15] Speaker 04: That was actually what prompted my question. [00:13:18] Speaker 04: How does that compare to the overall structure? [00:13:21] Speaker 02: Yeah, and what I think you see described, and is my understanding of how this technology works, but I don't know that there's a specific measurement anywhere in the 782 patent itself, is that the larger band here extends most of the length of the stem structure. [00:13:40] Speaker 02: I mean, part of the difference between [00:13:43] Speaker 02: which I think puts the lie to the idea that the band has to be thin. [00:13:50] Speaker 02: I mean, at least as depicted in the drawing, there's nothing about dimension L that is short as compared to, it may not be as long as the entire structure, but there's nothing about it that's short compared to the structure. [00:14:02] Speaker 02: And I think that there's just a difference in the way that Leonhardt and [00:14:07] Speaker 02: the 7-8-2 are structured. [00:14:10] Speaker 02: The 7-8-2, as you can see, has sort of the dome appearance coming out from the end, whereas, you know, Leonhart, the valve is in the middle between two more or less circular stem constructions, and the graph material extends, you know, can extend without, you know, essentially flapping over part of the structure [00:14:36] Speaker 02: the way that would if you potentially extended it out the way that the 7-8-2 is drawn. [00:14:42] Speaker 02: I realize that I'm into my rebuttal time. [00:14:44] Speaker 03: Well, no, that will save your rebuttal. [00:14:47] Speaker 03: Let me ask the panel before we turn to Mr. Andinelli. [00:14:50] Speaker 03: Do you have any more questions for Mr. O'Quinn at this stage in the argument? [00:14:56] Speaker 03: No. [00:14:57] Speaker 03: All right. [00:14:59] Speaker 03: Good. [00:14:59] Speaker 03: Then we'll hear on behalf of Dr. Snyders, Mr. Andinelli. [00:15:05] Speaker 01: This is Matt Antonelli for Snyders. [00:15:08] Speaker 01: Good morning and may it please the court. [00:15:10] Speaker 01: The board's decision that Leonhart's graph does not qualify as a band, that decision should be affirmed because it was based on St. [00:15:19] Speaker 01: Jude's own construction, which required a band to be shaped like a clothes strip or a ring. [00:15:27] Speaker 01: And despite St. [00:15:29] Speaker 01: Jude's arguments to the contrary, which I just heard my friend make again, [00:15:34] Speaker 01: it's clear that those words, band, closed strip, ring, clearly exclude things that are too long to qualify for those. [00:15:42] Speaker 01: And so the idea that the only reason why St. [00:15:44] Speaker 01: Jude lost was because there was this additional implicit new construction that brought in this requirement that it can't be too long for the first time is simply false. [00:15:55] Speaker 05: Well, what's your response to the last point, which is how long is the band in the patent itself? [00:16:05] Speaker 01: So I think that the bans that are disclosed in the patents themselves obviously are not too long to qualify as bans. [00:16:15] Speaker 01: But that issue of where that line is drawn, St. [00:16:20] Speaker 01: Jude is the one who proposed the construction and said that level of detail is something that's left up to the fact finder to determine. [00:16:29] Speaker 04: Do you know, can you tell me, I don't remember that this point about figure six in that column nine or something where the alternative two-band model is shown and some numerical estimates are given. [00:16:51] Speaker 04: I don't remember seeing anything in St. [00:16:53] Speaker 04: Jude's presentation, at least in this court, that relied on those numbers. [00:16:58] Speaker 01: None of that was discussed before the board, and none of it was discussed in any of the papers before this court. [00:17:04] Speaker 01: There's a second independent reason, and in some ways much simpler reason, why the board's determination with respect to the lean heart anticipation argument should be affirmed. [00:17:16] Speaker 01: And that is that all of these claims not only require a band, but they also require the band to limit spacing. [00:17:25] Speaker 05: Yeah, I've noticed that in your argument, but all the board said was really, it doesn't disclose a ban much less a ban that limits spacing, and I don't really understand, you know, the board didn't explain itself at that point. [00:17:43] Speaker 01: So, I don't think St. [00:17:45] Speaker 01: Jude has challenged the board's determination as not being sufficiently explained. [00:17:52] Speaker 01: All St. [00:17:53] Speaker 01: Jude has argued here is that what we say the board found, the board didn't really find. [00:17:59] Speaker 04: Can you correct my understanding? [00:18:03] Speaker 04: My understanding was that where the board was discussing that, and I don't have it in front of me, it was noting that there were two alleged bans in Leonhard. [00:18:14] Speaker 04: And as to one, there's no reason to think it didn't really qualify for one reason. [00:18:20] Speaker 04: As to the other, [00:18:22] Speaker 04: which I think was maybe the sleeve. [00:18:27] Speaker 04: It said it didn't qualify because it wasn't a ring, but the general statement that I think you didn't show that there was a band, let alone one, that constrained is easily understood as involving only the first of the two alternative alleged bands, not the second. [00:18:49] Speaker 01: That's the argument that St. [00:18:52] Speaker 01: Jude makes in the yellow brief at pages 16 and 17 and says that the board's finding only applies to their first theory, not their second theory. [00:18:59] Speaker 01: They admit that it applies to the second theory, that the board indeed found that that one doesn't limit spacing. [00:19:04] Speaker 01: They say it doesn't apply to the first theory. [00:19:06] Speaker 01: And I think that's plain wrong in view of what the board actually said. [00:19:11] Speaker 01: So at appendix 22, this is a quote. [00:19:14] Speaker 01: we determine that neither Lienhardt's cylindrical portions nor its graph 24 are a band, let alone a band that limits spacing between adjacent peripheral anchors. [00:19:25] Speaker 01: And I don't think there's any way to read that sentence as anything other than a conclusion about both of St. [00:19:32] Speaker 01: Jude's theories. [00:19:33] Speaker 01: And it would be one thing if St. [00:19:35] Speaker 01: Jude was coming in and saying, well, there was no basis for that. [00:19:37] Speaker 01: That's wrong. [00:19:38] Speaker 01: It wasn't adequately explained. [00:19:40] Speaker 01: None of those arguments have been presented. [00:19:42] Speaker 01: The sole argument St. [00:19:43] Speaker 01: Jude has made on this point in its response brief is that it says that that's not what the board ruled. [00:19:49] Speaker 01: Well, that's the board's ruling we submit, and it's in the court's order. [00:19:57] Speaker 01: Let me turn to the manipulator argument, and this is one where [00:20:05] Speaker 01: The most important thing I think is to focus on what St. [00:20:08] Speaker 01: Jude actually pointed to and what it actually said before the board versus what it's now arguing to this court. [00:20:17] Speaker 04: Can you explain whether you agree or disagree with Mr. O'Quinn about whether if you are right about your cross-appeal issue on [00:20:31] Speaker 04: on Bessler and the retention of the native valve, that whether this issue has to be reached? [00:20:43] Speaker 01: So I think you're referring to across the point on the argument that the size and shape claims instruction. [00:20:50] Speaker 01: And on that point, if we win, I disagree with my friend. [00:20:55] Speaker 01: This doesn't require a remand. [00:20:57] Speaker 01: And the reason it doesn't require a remand and should result in an outright reversal [00:21:01] Speaker 01: is that this claim construction was at issue from the very beginning. [00:21:06] Speaker 04: This may be ill-formulated, in which case I'll drop it and figure it out later. [00:21:12] Speaker 04: 28, like 1, raises the same issue about leaving the valve or not leaving the valve. [00:21:22] Speaker 04: If you're right about how Bessler does not teach leaving the native valve, then [00:21:30] Speaker 04: For anticipation, is there any remaining issue and therefore, since this manipulator issue is being raised as I understand it, solely on the question of anticipation, does your cross appeal obviate the need to consider this manipulator question? [00:21:55] Speaker 01: I think the confusion is that the issue about whether the valve element will be retained, I think that's St. [00:22:01] Speaker 01: Jude's, one of St. [00:22:02] Speaker 01: Jude's appellate points that we're opposing on this obviousness theory. [00:22:09] Speaker 04: When you just proceed with your argument and then I'll think about this offline, thanks. [00:22:15] Speaker 01: Thank you, Your Honor. [00:22:17] Speaker 01: What I wanted to point out with respect to the manipulator issue is what St. [00:22:23] Speaker 01: Jude actually [00:22:24] Speaker 01: argued in front of the Patent Office. [00:22:28] Speaker 01: And there's only two things, and we heard counsel cite both of them, Appendix 2906, which is their petition, and then the evidence they cite, including Dr. Dawsey's declaration at Appendix 3684. [00:22:40] Speaker 01: Well, if you look at what they actually said at Appendix 2906, it's a single sentence. [00:22:46] Speaker 01: And all it is is a conclusory assertion that the proximal end of the catheter is the manipulator, which is used to position the digital holder. [00:22:54] Speaker 01: And then they cite certain portions of Bessler. [00:22:58] Speaker 04: Now, I would have thought. [00:22:59] Speaker 04: Just to be literally on the same page, is this the finally Bessler describes sentence or something else? [00:23:06] Speaker 01: It's the sentence in Appendix 2906 that says the proximal end of the catheter, element 91, is the manipulator which is used to position the distal holder. [00:23:15] Speaker 01: OK, just above that. [00:23:16] Speaker 01: OK. [00:23:17] Speaker 01: And that's all they say on this point. [00:23:20] Speaker 01: I think the next sentence has to do with the ejector. [00:23:23] Speaker 01: It's not enough because that's just an assertion. [00:23:26] Speaker 01: And if you look at the evidence that they cited, which the board did, it doesn't disclose that. [00:23:33] Speaker 01: It doesn't say anything about the proximal end of the catheter. [00:23:36] Speaker 01: And the only thing it says about positioning the distal holder talks about the guide wire is used to do that. [00:23:45] Speaker 01: And so the board on the evidence before it correctly concluded that St. [00:23:50] Speaker 01: Judith fell to show that Bessler [00:23:52] Speaker 01: discloses what it says it discloses, and then it also noted the only thing that talks about that is the guide wire, and that's not the claim to manipulator. [00:23:59] Speaker 01: St. [00:23:59] Speaker 01: Jude was lying on the catheter. [00:24:02] Speaker 05: The problem is, we have many times said that the board once given a reference is entitled to examine the reference as a whole once the parties have joined issue with respect to what that reference teaches. [00:24:18] Speaker 05: So do you want us to say, well, the board can do it, but it doesn't have to do it if the petitioner doesn't give it enough information? [00:24:28] Speaker 01: Certainly, the board is not obligated to go look at other portions of VESA. [00:24:32] Speaker 01: And in fact, if it went and looked at our situations where if it did do that, you might run into serious due process problems and you might run into serious problems [00:24:43] Speaker 01: with the Supreme Court president holding that is the petitioner who defines the petition and so forth. [00:24:49] Speaker 01: But that simply didn't happen in this case. [00:24:52] Speaker 01: There's no evidence that the board went and looked at other portions of Vestler. [00:24:57] Speaker 01: And in any event, there's a waiver issue here. [00:25:01] Speaker 01: Whatever the board did, St. [00:25:03] Speaker 01: Jude can't now come and make arguments that it didn't make before. [00:25:07] Speaker 01: The other thing is St. [00:25:09] Speaker 01: Jude points to, well, we got Dr. Dawsey's declaration. [00:25:14] Speaker 01: Thank you. [00:25:18] Speaker 01: Dr. Dossi's declaration of 3684, and they say all kinds of things are supposedly disclosed by that paragraph of Dr. Dossi's declaration, paragraph 79. [00:25:27] Speaker 01: So, for example, in the blue brief at pages 44 and 45, St. [00:25:32] Speaker 01: Jude asserts that it talks about positioning and pooling and retrieving and all kinds of stuff. [00:25:37] Speaker 01: That's simply untrue. [00:25:39] Speaker 01: The only thing that's in Dr. Dossi's declaration in that paragraph that goes to this issue is the exact same sentence that's in the petition. [00:25:47] Speaker 01: And the citation to the exact same evidence, of course, they don't cite the Dr. Dossi, except for the citation of Dr. Dossi's declaration. [00:25:54] Speaker 01: That's it. [00:25:55] Speaker 01: And so the idea that Dr. Dossi's declaration somehow was a bunch of evidence that saves the day is simply false. [00:26:01] Speaker 04: Can I just ask, in Besler, how does the distal end get to the right location? [00:26:10] Speaker 01: I don't know the answer to that, but I don't think there's any teaching that the proximal end does that. [00:26:16] Speaker 01: And, you know, same dude makes an argument at page 24 of the yellow brief that, well, common sense says that it would have to be pushing the proximal end. [00:26:24] Speaker 01: I mean, just off, when I think about pushing a tube into something, it doesn't seem, especially a flexible one, it doesn't seem at all a common sense idea that you would push away from the end of the flexible thing. [00:26:37] Speaker 01: Maybe you would do that for something that was more rigid. [00:26:39] Speaker 01: And so it's certainly possible you could do it in other ways, and the proximal end would not be used. [00:26:44] Speaker 01: So I'm not sure that there's any particular teaching in Bethler that says anything about that, but it certainly doesn't say anything about using the proximal end to do it. [00:26:54] Speaker 01: I know I'm in my rebuttal time, but let me touch briefly on our appellate points. [00:26:59] Speaker 01: We've talked a little bit about size and shape already. [00:27:02] Speaker 01: I want to point out, with respect to our second claim construction argument, the requirement [00:27:07] Speaker 01: that the flexible valve element be attached to a particular component of the artificial valve, and not only that, but to a particular portion of that particular component. [00:27:20] Speaker 01: We think the board's decision is wrong allowing for indirect attachment, and that requires reversal. [00:27:26] Speaker 01: But at a minimum, there's a very important concession that St. [00:27:29] Speaker 01: Jude made in its briefing, where it said, look, we agree that any indirect attachment's not sufficient, and you really have to [00:27:36] Speaker 01: to do an inquiry into the nature of exactly the degree of indirectness or directness in order to answer this question. [00:27:44] Speaker 01: And that's not what happened in front of the board. [00:27:46] Speaker 01: The board just said as a general principle, indirect attachment's enough, therefore we win. [00:27:52] Speaker 01: Therefore, Snyder's loses. [00:27:54] Speaker 01: And on that point, we're entitled, based on that concession, at least to remand. [00:28:00] Speaker 01: With that being said, I'd like to reserve my remaining time for rebuttal, please. [00:28:04] Speaker 03: Okay, thank you. [00:28:05] Speaker 03: We'll hear from Mr. O'Quinn, and we've run over for three minutes, so let's invite Mr. O'Quinn's time to six minutes for rebuttal. [00:28:18] Speaker 02: Thank you, Judge Newman. [00:28:20] Speaker 03: Okay. [00:28:21] Speaker 02: Judge Toronto, coming back to a question that you asked, we discussed the length of the second embodiment [00:28:31] Speaker 02: of the 782 patent at pages 30 to 31 of our opening brief. [00:28:37] Speaker 02: And then with respect to their arguments that there's an alternative ground to resolve the Leonhard issue, the board didn't address whether the graph material served to constrict or to limit the expansion. [00:28:52] Speaker 02: It acknowledged our argument at page appendix 20, but it doesn't purport to reject it. [00:28:58] Speaker 02: And Judge Toronto, you also asked [00:29:00] Speaker 02: how does the distal end get to the right location? [00:29:05] Speaker 02: And I think that if you look at Bezler column four, the bottom column four, it tells you how they manipulate it into position. [00:29:17] Speaker 02: And all of that is without the guide wire because it's not until column five, line 13 that it says that the guide wire is an optional [00:29:28] Speaker 02: And so I think it does it exactly the same way. [00:29:32] Speaker 02: The instruments look exactly the same. [00:29:34] Speaker 02: As the 7-8-2 patent describes it, Appendix 109, Column 8, lines 34 to 39. [00:29:41] Speaker 02: It says that even if you're using a guide wire, the manipulator can be pushed or pulled over it. [00:29:47] Speaker 02: It's not like the manipulator is a zip line and it can just slide down. [00:29:51] Speaker 02: It still has to be, it's not like the guideline is a zip line. [00:29:56] Speaker 02: The manipulator still has to be pushed or pulled over it. [00:29:59] Speaker 02: Now, I want to come back to the question. [00:30:01] Speaker 04: Can I just double check on something? [00:30:04] Speaker 04: Yes. [00:30:05] Speaker 04: As I understand it, the essence of the argument made by the other side is that you're just assuming the use of the proximal end to advance the entire catheter and therefore the distal end. [00:30:24] Speaker 04: and the words at the bottom of, the words in the passages of Vesla that you cited don't say that. [00:30:31] Speaker 04: Just to double check, are there other words in Vesla that do say that? [00:30:37] Speaker 02: Well, I think if you look, for example, at column four, line 58, it says that it includes a flexible catheter which may be inserted into a vessel of the patient and moved within that vessel. [00:30:51] Speaker 02: And then you have the uncontroverted testimony of our expert, Dr. Dawsey, that says that the proximal end of the catheter is the manipulator. [00:31:10] Speaker 02: Again, something that they did not contest. [00:31:12] Speaker 02: And the board didn't raise any questions about, and the guide wire came completely out of nowhere in the board's final written decision, which goes to our procedural objections, you know, above and beyond the substantive objections. [00:31:25] Speaker 02: But that I think encapsulates the issue. [00:31:32] Speaker 02: If you have more questions on that, I'm happy to answer them. [00:31:34] Speaker 02: But I also wanted to come back to the question that you had asked about if you agree with them about, [00:31:40] Speaker 02: a size and shape, a point that my colleague didn't really argue. [00:31:44] Speaker 02: I'm happy to answer questions you might have about that, but I also don't want to open the door on things. [00:31:49] Speaker 02: He didn't really make any arguments about their claim construction. [00:31:54] Speaker 02: But even if you assume that their argument is right, it is a claim construction argument. [00:32:01] Speaker 02: And you would still have to remand for factual findings on whether Bezler's scent is in fact not sized and shaped to fit even if cusps are removed. [00:32:13] Speaker 02: That's an additional fact question that the board did not reach. [00:32:17] Speaker 02: Now, they have to assume, they have a statement from their experts that Bezler must be larger because if the cusps are still there, that it would somehow make a difference. [00:32:28] Speaker 02: But there is evidence to the contrary, as I pointed out, at appendix 108, column 5, starting around line 55 of the patent at issue, you see the sizes of the expanded stents of the 782, which, if anything, are larger than what's disclosed at appendix 1373, which is the size of the stents of Bezler, as you can see, at column 6, line 15. [00:32:57] Speaker 02: So I ultimately don't know what they hope to accomplish with their claim construction argument other than a remand. [00:33:04] Speaker 02: I think their claim construction argument is wrong for the reasons that the board gave. [00:33:10] Speaker 02: And I'm happy to answer questions about that if that is of concern to the panel or to address any of the other issues that my colleague addressed or that the court may have. [00:33:24] Speaker 03: Any more questions for Mr. O'Quinn? [00:33:26] Speaker 04: No. [00:33:27] Speaker 04: No, thank you. [00:33:30] Speaker 03: All right. [00:33:31] Speaker 03: Thank you, Mr. O'Quinn. [00:33:33] Speaker 03: We'll hear from Mr. Andinelli. [00:33:34] Speaker 03: You have your full rebuttal time. [00:33:38] Speaker 01: Thank you, Your Honor. [00:33:40] Speaker 01: So let me talk about the size and shape to claim construction. [00:33:44] Speaker 01: And I think I answered the question previously, but I do believe that if we went on that, we're entitled to reversal. [00:33:53] Speaker 01: But on the [00:33:56] Speaker 01: On the merits of that claim construction issue, one thing I do want to be clear is that this is not a situation where, as St. [00:34:05] Speaker 01: Jude characterizes it, where we're saying, look, every embodiment or every preferred embodiment in the patent is between those costs. [00:34:14] Speaker 01: And therefore, that means that you should construe the claims to be limited to that. [00:34:19] Speaker 01: That's not the argument we're presenting to the court today. [00:34:22] Speaker 01: What we're relying on is the fact [00:34:25] Speaker 01: that Dr. Snyder's patent specifically, the claims specifically include express language requiring the plurality of costs to be there between the upstream and downstream region. [00:34:38] Speaker 01: And then when the claims say that it must be, the frame must be sized and shaped for insertion in that region, it's referring to the antecedent basis in the preamble. [00:34:47] Speaker 01: that if the region is defined with the cuts. [00:34:50] Speaker 05: Again, if we, Council, if we agree with that, what is your response to Mr. O'Quinn's argument that we would still have to remand for purposes of determining what that size and shape would have to be? [00:35:05] Speaker 01: My response to that is St. [00:35:12] Speaker 01: Jude has, there's really no point of a remand because St. [00:35:15] Speaker 01: Jude has never argued [00:35:18] Speaker 01: or put forward any evidence below that the claim is satisfied under our construction. [00:35:27] Speaker 01: And they had the opportunity to do so, but they decided to rest their argument below purely on the claim construction issue. [00:35:36] Speaker 01: So given that they never advanced that argument below, there is no entitlement to a remand on that point. [00:35:45] Speaker 04: What's the right [00:35:48] Speaker 04: document that we would look at for that, would that be, I don't know, their reply in this is the 106 proceeding or what? [00:36:04] Speaker 01: Yes. [00:36:05] Speaker 01: So there was a reply and so they certainly had an opportunity to argue it there and it's not, they didn't make that argument in the reply. [00:36:13] Speaker 01: And there's also [00:36:16] Speaker 01: at the hearing itself, they had an opportunity to argue this and there's no evidence that they made any argument there and they did not. [00:36:25] Speaker 01: So because their argument was premised purely on the legal issue, we think we are entitled to an outright reversal on that. [00:36:38] Speaker 01: The last thing I'll touch on is the factual finding of the board [00:36:47] Speaker 01: that Bessler's cuff actually limits spacing. [00:36:53] Speaker 01: And that is a finding that was not supported by substantial evidence. [00:36:58] Speaker 01: And it's pretty interesting the sort of sequence of things that St. [00:37:04] Speaker 01: Jude goes through in the briefs on this. [00:37:05] Speaker 01: It's in the yellow brief at pages 49 to 50. [00:37:08] Speaker 01: They have the opportunity to point out the substantial evidence, and I submit they fail. [00:37:12] Speaker 01: First they say figure four. [00:37:14] Speaker 01: Well, that's just a figure, and it doesn't show in any way [00:37:17] Speaker 01: that there's tension on that cuff, that it's tight, and therefore that it would limit spacing, which is the theory that they advanced. [00:37:23] Speaker 01: So in response to that, they say, oh, well, Dr. Dawsey talked about figure four, and he said a personal skill in the art would expect it to be tight. [00:37:31] Speaker 01: But that was just an assertion by Dr. Dawsey that was unsupported by any evidence. [00:37:36] Speaker 01: And it's not even quite clear what he meant by would expect it to be tight. [00:37:40] Speaker 01: And so the response to that is, no, no, no. [00:37:44] Speaker 01: Dr. Dawsey actually had a basis for that. [00:37:46] Speaker 01: And it turns out what that basis is according to St. [00:37:48] Speaker 01: Jude was Snyder's infringement contentions from the district court litigation when we first filed suit several years ago. [00:37:58] Speaker 01: When we submitted contentions and we said, hey, there's a tissue skirt on the accused device, the device that St. [00:38:03] Speaker 01: Jude makes, and we contend that that meets the claim limitation that it limits spacing. [00:38:10] Speaker 01: Now, that's a contention that [00:38:11] Speaker 01: Hopefully one day I will have the ability to prove at trial. [00:38:17] Speaker 01: But that's a contention that is still in dispute in the district court litigation. [00:38:22] Speaker 01: For St. [00:38:22] Speaker 01: Jude to say that at the end of the day, that's our substantial evidence, some contention that we have about a different product that we will have to prove has anything to do with whether the best surveillance is under their theory tight and therefore limit spacing. [00:38:40] Speaker 01: Those two things are completely divorced. [00:38:42] Speaker 01: One doesn't have anything to do with the other. [00:38:45] Speaker 01: And that's, at bottom, what their entire argument was based on, and that's the post. [00:38:50] Speaker 01: That's the finish. [00:38:54] Speaker 03: Okay. [00:38:54] Speaker 03: Thank you. [00:38:55] Speaker 03: Any more questions for Mr. Adinelli? [00:38:58] Speaker 04: Nope. [00:38:58] Speaker 04: No. [00:38:59] Speaker 03: Okay. [00:38:59] Speaker 03: Thank you. [00:39:00] Speaker 03: Thank you. [00:39:01] Speaker 03: Thank you. [00:39:01] Speaker 03: Thanks to both partners. [00:39:03] Speaker 03: The case is taken under submission.