[00:00:45] Speaker 01:
May it please the court, I'm John Lindum appearing here on behalf of the patent owner, Susan Knight-Ink.

[00:00:52] Speaker 01:
and you're seeking a reversal of the decision from the Patent and Trademark File Appeal Board, the PTAP, that was rendered in conjunction with an IPR.

[00:01:02] Speaker 01:
They held all the claims of the patent invalid and we feel that there are numerous errors that are not supported by substantial evidence in the case and that there are frequent instances where they're actually drawing upon

[00:01:17] Speaker 01:
The 917 patent, that's the patent in suit here, a way of hindsight to fill in some of the gaps in the prior art.

[00:01:30] Speaker 01:
uh... first of all the the patent deals here with a very unique type of bed bug trap, now this sounds this is not esoteric, not high tech and stuff like that but it's a very simple structure that enables the trap to discriminate between bed bugs that are located in one area of the room that's infested and another trap that enables the detection of

[00:01:59] Speaker 01:
the bed bugs that are in the bed and specifically the two areas of the trap are made up with pitfall traps that's where the bed bugs fall into the traps and those traps are not replicated in any of the art and none of your traps and one of the reasons you say is because the sides are smooth so the bed bugs can't get out

[00:02:25] Speaker 02:
Can I just ask you a fundamental question?

[00:02:29] Speaker 02:
I think one of the arguments you say this invention is worthwhile because then the consumer, whoever lives in the house, can kind of figure out where the source of the bed bug problem is coming from.

[00:02:42] Speaker 02:
Can I just ask you an ignorant question, which is if the bed bugs are coming from the leg of the bed and they can't get out on the sides because they're smooth, why wouldn't they just climb back up

[00:02:55] Speaker 02:
and get to their victims, which are the people sleeping in the bed.

[00:03:00] Speaker 02:
So, and if that's the case, then wouldn't it defeat your notion that, well, people will be able to ascertain which big bugs, bed bugs, if any, are coming from the bed if they've all gone back to bed, right?

[00:03:13] Speaker 02:
That's correct, Your Honor.

[00:03:16] Speaker 01:
You're correct.

[00:03:16] Speaker 01:
They could go back up into the bed.

[00:03:18] Speaker 02:
So how would this invention work?

[00:03:20] Speaker 02:
You're saying one of the purposes is so that someone living in the house can figure out whether the bed bugs came from somewhere else or from the bed, if in fact that retainer at the leg is not retaining the bed bugs and they're all going back.

[00:03:34] Speaker 01:
It's going to be empty.

[00:03:35] Speaker 01:
Thank you.

[00:03:36] Speaker 01:
It's because the habits of the bed... This trap is designed by a couple of entomologists.

[00:03:43] Speaker 01:
They are aware of the characteristics of bed bugs.

[00:03:46] Speaker 01:
Bed bugs abhor sunlight.

[00:03:49] Speaker 01:
They're nocturnal insects.

[00:03:52] Speaker 01:
They come out at night and they go and feast on the human being in the bed.

[00:03:57] Speaker 01:
Or the bait, as we call them.

[00:04:01] Speaker 01:
And then when they're done feasting, it takes them an hour or so, it's usually after midnight, they go back down and go back into their hiding places, their places of refuge, which are some place in the room.

[00:04:15] Speaker 01:
This is the habit.

[00:04:16] Speaker 01:
You're correct, Your Honor, that they could turn around and go back up into the bed and try to find a hiding place there, and this trap would not connect with those type of bed bugs, but that's not their normal habit.

[00:04:28] Speaker 02:
But they're not, but you're precluding them from going to their regular places of refuge because they can't get out of these smooth walls, they can't climb out.

[00:04:36] Speaker 02:
No choice other than to stay there in the light or to climb back up in bed, right?

[00:04:43] Speaker 01:
But they don't, that's not their habit.

[00:04:45] Speaker 01:
Their habit is to go find hiding places and cracks in the walls or under the... But they can't get out, right?

[00:04:51] Speaker 02:
Because that's the smooth walls.

[00:04:52] Speaker 01:
No, but that's their tendency is to try to do that.

[00:04:56] Speaker 01:
They are trying to hide from the sunlight.

[00:04:59] Speaker 02:
So what's the psychology of bed bugs?

[00:05:01] Speaker 02:
In the absence of their being able to go back to their hiding places, are they just going to stay on the outside?

[00:05:07] Speaker 02:
Are they going to go back up the legs?

[00:05:09] Speaker 01:
Some of them may stay, but others would remain trapped in the inner pitfall trap.

[00:05:16] Speaker 03:
I'm done.

[00:05:17] Speaker 03:
I'm done.

[00:05:22] Speaker 03:
If that's true, then it would seem to me that the same thing would happen if you put the bed leg into section marked G of the Generich prior art, would it not?

[00:05:39] Speaker 03:
Because then if you put the bed leg into section G of the Generich prior art, wouldn't exactly the same thing happen as long as

[00:05:52] Speaker 03:
the edges of Section G so that the bed bugs couldn't get out of that, wouldn't have the same result.

[00:06:01] Speaker 01:
Are you thinking about the Section G being the... Of the Generich.

[00:06:07] Speaker 03:
Yes.

[00:06:08] Speaker 03:
Of the Generich prior arc.

[00:06:09] Speaker 01:
Of Figure 5.

[00:06:09] Speaker 01:
That would happen also.

[00:06:11] Speaker 01:
It could.

[00:06:12] Speaker 01:
But the fact is there's no teaching in any of the prior arc to put a bed leg in any trap.

[00:06:18] Speaker 03:
So that's, you think, the biggest difference between the prior art and your invention is the teaching to put a bed leg into the center section again of, say, Figure 5 of Jennerage?

[00:06:29] Speaker 01:
No, that's not the only difference.

[00:06:32] Speaker 01:
There are a couple of primary differences.

[00:06:34] Speaker 01:
One is there are two pitfall traps, not one.

[00:06:38] Speaker 01:
And I know the Patent Office may be discreet with that, but there's no pitfall.

[00:06:41] Speaker 03:
Well, I guess my question really is, doesn't putting the leg into section

[00:06:47] Speaker 03:
Convert section G into a pitfall trap of generage.

[00:06:55] Speaker 01:
It could do that if there were teachings in the art to place the trap under the leg of the table.

[00:07:01] Speaker 03:
But that brings us back to the first point, which is, isn't that the main difference between the prior art and your invention?

[00:07:08] Speaker 03:
Is the idea of putting the leg into the center section.

[00:07:13] Speaker 03:
Because you're saying that if you do put the leg in the center section, then the center section becomes a pitfall trap, and now you have a two pitfall trap trap.

[00:07:21] Speaker 01:
Well, no, there's a few other things, Your Honor.

[00:07:23] Speaker 03:
Okay, what are the others?

[00:07:24] Speaker 01:
The other thing is that center, that G, that doesn't have, that's not designed to capture bed bugs.

[00:07:31] Speaker 01:
That has no slippery surfaces.

[00:07:33] Speaker 03:
It does not have... Okay, that's the slippery surface argument.

[00:07:36] Speaker 01:
That's right.

[00:07:38] Speaker 01:
Or some alternative, such as Jenarich teaches that he could put in what he called paralyzing powder, which is what he does put in the outer pitfall trap to keep the insects in there.

[00:07:49] Speaker 01:
But there's no teaching that the section G that you're talking about is a bait receptacle.

[00:07:55] Speaker 01:
There's no reason to have slippery surfaces there.

[00:07:57] Speaker 01:
There's no reason to have

[00:08:00] Speaker 01:
The structure of that bait receptacle is not a pitfall trap.

[00:08:16] Speaker 01:
There's a key element missing.

[00:08:18] Speaker 01:
The finding of the PTAB was all you needed to have was vertical walls and a floor, and that would define the structure.

[00:08:26] Speaker 03:
The slick vertical walls is what they found, as I understand it.

[00:08:32] Speaker 03:
For the connection between the prior art, the reason that the prior art was deemed

[00:08:37] Speaker 03:
To render this claim obvious is not just walls, but slick walls, slippery walls.

[00:08:46] Speaker 01:
No, I think the original finding was they assumed that the structure of two pitfall traps is already in Jennerich, even though he doesn't discuss it.

[00:08:57] Speaker 01:
Right.

[00:08:57] Speaker 01:
They're missing the fact that the vertical walls do not form a pitfall trap.

[00:09:02] Speaker 01:
You have to have something else like slippery surfaces or the powder to disable the climbing ability of the insects.

[00:09:12] Speaker 03:
But that was my understanding was, and correct me if this is wrong, but my understanding was that

[00:09:18] Speaker 03:
The slippery surface was an added element to generage so that you end up with obviousness based on both the generous structure and slippery walls.

[00:09:32] Speaker 03:
Otherwise, generage would have been anticipated.

[00:09:36] Speaker 01:
That is correct.

[00:09:37] Speaker 01:
You have to add that.

[00:09:40] Speaker 01:
That had to be a teaching somehow.

[00:09:42] Speaker 01:
There had to be a motivation

[00:09:44] Speaker 01:
to cause the person of ordinary skill in the R to add slippery surfaces.

[00:09:48] Speaker 01:
And what we're saying is there is no motivation to do that for several reasons.

[00:09:54] Speaker 01:
One is, if you look at Jennerich, and again, we're starting with Jennerich, which is, I call it a single pitfall trap.

[00:10:01] Speaker 01:
It has a bait receptacle in the middle.

[00:10:03] Speaker 01:
It relies upon bait to attract the insects in it.

[00:10:06] Speaker 01:
But there's no way the insects would ever reach the bait receptacle.

[00:10:12] Speaker 01:
This catching space, which is H, I think, in Jennerich, totally surrounds the bait receptacle.

[00:10:21] Speaker 03:
Unless you put a bed leg in the middle of the Jennerich structure.

[00:10:25] Speaker 01:
Yeah, but where does that suggestion come from?

[00:10:28] Speaker 01:
That comes from our patent.

[00:10:30] Speaker 01:
That's hindsight, Your Honor.

[00:10:31] Speaker 01:
That's one of the main errors in the PTAB there.

[00:10:36] Speaker 01:
There's also just another element that's related to that where they also relied upon hindsight.

[00:10:44] Speaker 01:
The bed or the floor of that bait receptacle is supposed to be support leg type floor.

[00:10:51] Speaker 01:
That's a limitation in the claim.

[00:10:53] Speaker 01:
That's a structural limitation to the floor of the bait receptacle in order for the leg from a table or a chair or a bed in order to be supported in that.

[00:11:04] Speaker 01:
And that doesn't come from any of the prior art.

[00:11:07] Speaker 01:
That solely comes, the teaching of making that floor a support structure, that comes entirely from the 973 patent as well.

[00:11:18] Speaker 01:
So that's the second element where they rely upon hindsight.

[00:11:22] Speaker 01:
to anticipate the claims and give motivation to the person of ordinary skill and the art to convert the generation to a double pitfall trap instead of the single pitfall trap, which it is.

[00:11:40] Speaker 01:
Okay.

[00:11:40] Speaker 01:
There are some other problems also with the PTABs rolling.

[00:11:45] Speaker 01:
One of the limitations is that the bait trap that we claim is bait free.

[00:11:55] Speaker 01:
They rely upon one of the yolks, so not generic, generic works on a baited trap, that's for sure.

[00:12:03] Speaker 01:
jennings reference is a trap that is also a pitfall trap it's a single pitfall trap again i want to emphasize

[00:12:12] Speaker 01:
the prior art has a double pitfall trap.

[00:12:15] Speaker 01:
None of the traps in the prior art have any sort of a, because they don't have double pitfall traps, they don't have the ability to discern between bed bugs in the bed versus bed bugs elsewhere in the room.

[00:12:28] Speaker 01:
You agree Jennings is slippery or polished?

[00:12:32] Speaker 01:
I agree.

[00:12:32] Speaker 01:
That does teach the slippery surface to capture traps.

[00:12:36] Speaker 01:
The problem is,

[00:12:38] Speaker 01:
Let's see, I was off on the issue of bait free.

[00:12:42] Speaker 01:
Did you want me to address this?

[00:12:44] Speaker 01:
No.

[00:12:45] Speaker 01:
Okay, okay.

[00:12:47] Speaker 01:
They're relying upon Jennings for the teaching that the trap can be bait free.

[00:12:54] Speaker 01:
That is another error without substantial evidence to support the position because Jennings is silent.

[00:13:01] Speaker 01:
on whether or not it uses traps.

[00:13:03] Speaker 01:
As you all know, patents are just written to describe the invention.

[00:13:07] Speaker 01:
They don't have to describe all the environment and everything that's around it.

[00:13:11] Speaker 01:
It consequently is improper when a patent is silent on a particular issue, such as whether their bait is used or not.

[00:13:20] Speaker 01:
You cannot draw negative inferences that in fact it is bait-free.

[00:13:25] Speaker 01:
But the PTAB didn't do that.

[00:13:28] Speaker 01:
They did, in fact, draw upon Jennings and assume that it teaches a bait-free trap.

[00:13:34] Speaker 01:
That's not proper teaching and any motivation to the person or another's skill in the art to actually make the bait-free trap out of our device.

[00:13:46] Speaker 01:
There's also, beyond that, there's another limitation that's, well, I guess I've already covered it, is the

[00:13:55] Speaker 01:
The idea that... I think I'd like at this point to reserve my time for rebuttal if I may do that, Your Honor.

[00:14:11] Speaker 04:
Thank you.

[00:14:11] Speaker 04:
Good morning, Your Honors.

[00:14:12] Speaker 04:
May it please the Court?

[00:14:15] Speaker 04:
As this court recognized, Jenner expressly discloses every structural limitation of the claim bed bug trap except Jennerich does not expressly disclose whether central space G's walls are smooth.

[00:14:31] Speaker 04:
The board correctly found that a person of ordinary skill in the art would have been motivated to make those walls smooth and the remainder of the arguments

[00:14:43] Speaker 04:
that my friend makes are directed towards intended uses, which are not sufficient to distinguish, patentably distinguish, the claimed invention from Generich's trap.

[00:15:03] Speaker 04:
Turning briefly to the smooth walls, the motivation for making smooth walls,

[00:15:09] Speaker 04:
The board found that both Central Space G and Catching Space K were pitfall traps by virtue of... Doesn't the patent itself say that smooth balls are recognized in the art?

[00:15:22] Speaker 04:
Yes, that's where I was going.

[00:15:23] Speaker 04:
That's what the board said, that this would have been an obvious design choice to in turn make these steep, deep canyons or

[00:15:33] Speaker 04:
or pitfall traps that are already present in Generich smooth.

[00:15:37] Speaker 00:
Deep canyons if you're a bedbug.

[00:15:39] Speaker 04:
If you're a bedbug.

[00:15:40] Speaker 04:
But even so, Generich discloses that his traps will work for beetles and cockroaches, which I think it's common knowledge are bigger than bedbugs.

[00:15:51] Speaker 04:
They're deep if you're a bug and that they will catch insects and that making the wall smoother, adding paralyzing powder, which is not a neurotoxin or any sort of physiological... What about putting the bed lead in one of the traps?

[00:16:06] Speaker 04:
That's an intended use that they're relying on and that intended use

[00:16:12] Speaker 04:
It doesn't distinguish the structure that we have here.

[00:16:17] Speaker 04:
It's just that you could put a bed lug in there, but by the way, the claims don't require that a bed lug be in there.

[00:16:25] Speaker 04:
They say a bed leg or another object, and the specification explains that the bed leg doesn't even have to be in there.

[00:16:35] Speaker 04:
The claims say it only needs to be capable of putting a bed leg in there, but the specification teaches us... Is there bait other than people?

[00:16:43] Speaker 04:
Well, humans just being in the room apparently within five feet of the trap according to their specification is enough to attract bed bugs and their specification expressly teaches that you can use the claim trap

[00:16:59] Speaker 04:
with a furniture like in it or just near where people are I mean that's an express teaching in the specification let me and you think that claim will go ahead wanted to find the oh it's just you can you ask me and I'll try to

[00:17:21] Speaker 04:
Okay, go ahead.

[00:17:23] Speaker 04:
I'm so sorry.

[00:17:25] Speaker 04:
If you look at the appendix at A163, at column three, for example, and it's taught in column four as well, if you look around line 35, it would say the device can be placed on the floor adjacent to furniture or other object to intercept the crawling arthropods.

[00:17:44] Speaker 04:
And in column four, again, it says it

[00:17:47] Speaker 04:
At line 39, the intercepting device can be placed on the floor or ground adjacent to an object.

[00:17:54] Speaker 04:
So all the claim requires is that central space G, or something falling within the scope of these claims, be capable of receiving a furniture leg.

[00:18:07] Speaker 03:
So you would interpret the language of claim one, which reads, support leg receiving receptacle.

[00:18:16] Speaker 03:
As not meaning that the support, that the receptacle has to be supporting a leg but only capable of supporting a leg and it could be used in any other context.

[00:18:27] Speaker 03:
That's what the board found.

[00:18:28] Speaker 03:
You would infringe claim one even if there were no leg in the room.

[00:18:33] Speaker 03:
If you just had a structure that had the internal section as well as the outer trap, that would be enough to infringe.

[00:18:44] Speaker 04:
I would answer that in two ways.

[00:18:47] Speaker 04:
The first is that's the way the board construed it.

[00:18:49] Speaker 04:
And secondly, that's the way that it makes sense as far as an infringement context is concerned.

[00:18:54] Speaker 04:
And that's because if you're selling these traps, you're not also going to be selling the furniture leg.

[00:19:00] Speaker 04:
You're not doing that.

[00:19:01] Speaker 04:
And so if you want to embrace an accused infringer, you want to be able to snare someone for direct infringement.

[00:19:12] Speaker 04:
And in order to do that, you're

[00:19:15] Speaker 04:
They're not going to be selling a furniture leg with their accused device.

[00:19:18] Speaker 03:
No, but you could imagine the situation where, and maybe this claim does or doesn't read on that, but you could imagine a patentee writing the claim to require the presence of the leg in order to get around prior art perhaps or

[00:19:32] Speaker 03:
perhaps anticipating that that's the only sensible use and therefore you'd be inducing infringement if you said here's the best way to use the trap so I mean it doesn't seem to me impossible to imagine to read this language to suggest that the leg has to be there but your contention is that's not the way the board is reading the language well I think that's

[00:20:00] Speaker 04:
I think that's an overly narrow reading, especially since the claims state that aren't just limited to a furniture leg.

[00:20:08] Speaker 04:
They're a furniture leg or other object, which is, that's a huge genus or other object.

[00:20:14] Speaker 04:
There's no, I mean, if you look at the specification of examples of other objects, it could be

[00:20:20] Speaker 04:
A bed, sofa, chair, kitchen appliances, a walker, a wheelchair, wheels parked on devices, computers, TV, stereos, electronic devices or other equipment.

[00:20:31] Speaker 04:
I mean this is a whole lot of things that the claimed device could have inserted into the first pitfall trap or could be placed near because again that language is

[00:20:46] Speaker 04:
is listed in the specification column four, alongside the language where we're talking about something being just adjacent to.

[00:20:53] Speaker 04:
So while that might be a reasonable reading, the board's reading is also reasonable and for that reason should be entitled to some deference.

[00:21:02] Speaker 03:
And we're still in the universe in which brought us reasonable interpretation.

[00:21:06] Speaker 04:
Yes, we are.

[00:21:08] Speaker 04:
Yes, we are.

[00:21:10] Speaker 04:
Although I think we would still have a winning case if we were under

[00:21:16] Speaker 04:
the district court plan construction standard.

[00:21:23] Speaker 04:
If you're, do you have any questions related to these other issues?

[00:21:28] Speaker 04:
I would just like to, there was one thing that I did also want to point out in response to this notion of bait free and that is that Generich's claim one does not require bait and Generich expressly teaches that bait is not part of his invention.

[00:21:46] Speaker 04:
A person of ordinary skill of art would still be motivated to make central space G's walls smooth with or without bait, so that any insect reaching that, either coming down from a furniture leg or making it over the bodies of other bugs to get to central space G would similarly be trapped in this deep cavern with a narrow bottom.

[00:22:24] Speaker 03:
Before you get into your rebuttal, I just want to make sure that you and Ms.

[00:22:30] Speaker 03:
Kelly are on the same page with respect to the scope of Claim 1.

[00:22:34] Speaker 03:
Do you believe that claim one is infringed by the trap itself irrespective of whether it happens to be used with a leg at a particular time?

[00:22:45] Speaker 03:
Or do you think that the leg has to be present in order for claim one, the bed leg or whatever, claim one to be infringed?

[00:22:54] Speaker 01:
Your Honor, I guess I do agree with her.

[00:22:56] Speaker 01:
We do not feel that the leg has to be present.

[00:22:59] Speaker 01:
But what we do say is that support leg receiving characteristic is an affirmative description of the structure of the bed.

[00:23:12] Speaker 01:
That is a requirement and that is not found in any of the prior art.

[00:23:18] Speaker 01:
None of the prior art talks about putting this trap under a bed leg.

[00:23:24] Speaker 01:
That only comes by way of hindsight from the 973 pattern.

[00:23:30] Speaker 01:
So that is a structural requirement, I think, in order for infringement.

[00:23:37] Speaker 01:
But the leg, no, it doesn't have to be there in order to do that.

[00:23:44] Speaker 01:
The other thing, I'm not sure whether I heard Ms.

[00:23:46] Speaker 01:
Kelly properly saying that Jennerich in one embodiment doesn't require bait.

[00:23:52] Speaker 01:
I'm not sure whether that was correct or not.

[00:23:55] Speaker 01:
But Jennerich is a baited trap.

[00:23:58] Speaker 01:
You take the bait away from Jennerich, there's nothing to attract the insects that cause it to go into the trap and get captured in its capturing space.

[00:24:09] Speaker 00:
Well, your friend seemed to imply, say it, she said, that

[00:24:14] Speaker 00:
And your patent seems to say that if humans are within a few feet, they act as bait even if they're not little tiny humans right in the middle of the trap.

[00:24:25] Speaker 01:
I don't quite see that because in order for the generage trap to operate and be effective in capturing the insects, it doesn't have to be bed bugs or any type of insects, they have to fall into the catching space, the catching space K.

[00:24:43] Speaker 01:
And the mere fact that they're in that area and there may be something attracting the insects to that area doesn't get them into the capturing space.

[00:24:55] Speaker 01:
And therefore we think that the limitation of the bait is in fact mandatory in either an embodiment of the generic strap.

[00:25:06] Speaker 01:
He's got the bait receptacles in both figure one and figure five.

[00:25:11] Speaker 01:
I think that's the end of my time.

[00:25:15] Speaker 02:
Thank you.

[00:25:15] Speaker 02:
We thank outside and the case is submitted.