[00:00:00] Speaker 00:
All right, let's start again.

[00:00:02] Speaker 00:
Case number 20-1289, the Kamura's Company SC against Deichen Industries Limited.

[00:00:09] Speaker 00:
Ms.

[00:00:09] Speaker 00:
Fiorella, proceed.

[00:00:12] Speaker 01:
Good morning, Your Honors.

[00:00:13] Speaker 01:
May it please the court, Natika Fiorella, on behalf of the appellate Kamura's.

[00:00:19] Speaker 01:
This court should reverse the board's obvious decision based on a single reference for three reasons.

[00:00:27] Speaker 01:
It fundamentally aired when it began its analysis with the flawed premise that was advanced by Deichen, that a generalized desire to cope wires faster is enough to show that a skilled artisan would have found it obvious to modify Colbeck's particular polymer, a narrow molecular weight distribution polymer, in order to achieve those faster speeds.

[00:00:51] Speaker 01:
Second, the board aired

[00:00:53] Speaker 01:
when, because it had no evidence from Dyken on the relevant question, it advanced its own rationale for why a skilled artisan would modify Colbex polymer to increase its melt flow rate, even though doing so would broaden its distribution.

[00:01:09] Speaker 01:
The reason why that was error, aside from the simple APA violation, was because the board simply had no evidence to support that finding.

[00:01:20] Speaker 01:
and it didn't give Chemores the opportunity or notice to respond fully to that finding.

[00:01:27] Speaker 01:
And third, the board erred by misapplying the law on Nexus and the requirements for commercial success and ultimately discounting Chemores' significant objective indicia evidence, which would have protected the board from using hindsight to find the claims obvious in the first place.

[00:01:44] Speaker 01:
I'll start with the first error.

[00:01:47] Speaker 01:
Now, the board erred by divorcing the motivation analysis from the actual prior art reference at issue and relying just on a generic motivation to go faster.

[00:01:59] Speaker 03:
But here it is key that it was... It's more than a generic motivation to go faster.

[00:02:04] Speaker 03:
It's also talking about the notion that broader molecular weights can be beneficial, right?

[00:02:15] Speaker 01:
Yes, Your Honor, there is.

[00:02:17] Speaker 03:
And that they also found that the narrower molecular weights of Colbeck was just a preference rather than something that was necessary to the invention.

[00:02:31] Speaker 01:
Well, Your Honor, I would disagree on that second point.

[00:02:34] Speaker 01:
But to start with your first point, the argument advanced by Deichen was simply that Colbeck wants to go faster.

[00:02:42] Speaker 01:
Or a skilled artisan would look at Colbeck and say,

[00:02:45] Speaker 01:
I can go even faster, which means that I will get higher speeds, which means that I can coat wires at a higher rate and increase productivity.

[00:02:54] Speaker 01:
So why not increase that melt flow rate?

[00:02:57] Speaker 01:
Dyken did not present any evidence on the likelihood of weight distribution or why broad or narrow would have any impact on that.

[00:03:04] Speaker 01:
That is simply missing from Dyken's analysis.

[00:03:07] Speaker 01:
The board did review some of Comorce's evidence on this point, which is the only evidence in the record.

[00:03:14] Speaker 01:
But I would disagree that the board found that callbacks desire for a polymer with a narrow molecular weight distribution is simply a preference.

[00:03:23] Speaker 03:
Again... Where in CalDoc does it say it's anything more than a preference?

[00:03:29] Speaker 01:
Your Honor, I would point you to multiple places in callbacks.

[00:03:32] Speaker 01:
First, on Appendix 347, Column 3,

[00:03:38] Speaker 01:
Lines 34 through 37, Colbeck says, the polymer of the invention used to coat wire and cable conductors has a very narrow molecular weight distribution.

[00:03:51] Speaker 01:
And then it continues.

[00:03:51] Speaker 03:
When I put it in that same column, when they get down to around 54 or something like that, it's been discovered that a narrow molecular weight distribution performs better.

[00:04:05] Speaker 03:
It doesn't say that it's essential.

[00:04:10] Speaker 01:
Your Honor, I would point to that same section and suggest that especially given the conventional wisdom at the time that you needed broad molecular weight distribution polymers in order to achieve these higher processing speeds.

[00:04:25] Speaker 01:
What Kalbeck is saying here is actually you don't.

[00:04:30] Speaker 01:
My invention is that you can get those higher speeds with that narrow distribution.

[00:04:35] Speaker 01:
And that is supported by other parts in the specification where callbacks.

[00:04:40] Speaker 03:
I'm not saying how this is a teaching, which is your content, right?

[00:04:48] Speaker 01:
I'm sorry, Judge Jake, you cut out just a little bit.

[00:04:50] Speaker 01:
Could you repeat your question?

[00:04:52] Speaker 03:
Sorry.

[00:04:53] Speaker 03:
Your contention is that this is a teaching away from using a broad molecular weight distribution.

[00:05:00] Speaker 03:
But I'm having difficulty seeing how this is a teaching away when it just says that it's better to use a narrower distribution.

[00:05:10] Speaker 01:
Certainly, Your Honor.

[00:05:11] Speaker 01:
Well, so that one paragraph frames the invention.

[00:05:15] Speaker 01:
So it starts, callback starts, by saying, look, what I invented was a narrow molecular weight distribution.

[00:05:23] Speaker 03:
Does it take away from a broad molecular weight distribution?

[00:05:27] Speaker 01:
I would say that that

[00:05:28] Speaker 01:
passage in conjunction with others, for example, column four on the same page, lines 47 through 51, where Colbeck is actually now talking about how do you make this polymer, which is a complicated thing.

[00:05:44] Speaker 01:
It's not as simple as just mixing a few things together.

[00:05:47] Speaker 01:
And when Colbeck is saying, how do you make my polymer the one that I say performs so much better, first, don't use chain transfer agents.

[00:05:56] Speaker 01:
And why?

[00:05:57] Speaker 01:
It says right here, Appendix 347, Column 4, Line 59, because chain transfer agents intrinsically broaden the molecular weight distribution.

[00:06:07] Speaker 01:
So again, showing that when it actually gets into how to make it, it says, don't use that method.

[00:06:12] Speaker 01:
We see the same thing on Appendix 348 at Column 5, Lines 22 to 26, where Callback says also,

[00:06:23] Speaker 01:
Be careful with those higher fluorination temperatures, because they can result in a difficultly controllable change to that MFI value.

[00:06:32] Speaker 01:
And that can result in broadening the molecular weight distribution and negatively affect performance.

[00:06:39] Speaker 01:
So again, what Callback is saying is not just, hey, if you can make it narrow, it's saying, these are ways that we're known to make it broad.

[00:06:47] Speaker 01:
Don't do them here, because my discovery is you don't need broad.

[00:06:51] Speaker 01:
You can do this all with narrow.

[00:06:53] Speaker 01:
So, Your Honor, I would respectfully suggest that Colbeck's invention is the narrow molecular distribution polymer, not just a preference.

[00:07:02] Speaker 01:
And I'll also note that Deiken never made this argument.

[00:07:05] Speaker 01:
The board somewhat suggested it by essentially just discounting Colbeck's teachings altogether.

[00:07:12] Speaker 01:
Reading the opinion, it sounds as if the board didn't really think Colbeck invented much of anything, but that wasn't proper for the board to do.

[00:07:19] Speaker 01:
But more importantly, the board cited no evidence from Deakin on this point because Deakin never made this argument.

[00:07:26] Speaker 04:
So just on that basis... Does the board ever cite any reasons or state any background as to the negative effect performance that would occur by broadening the molecular weight distribution?

[00:07:44] Speaker 04:
What's the negative aspect?

[00:07:48] Speaker 04:
Go ahead.

[00:07:49] Speaker 01:
No, Your Honor, the board does not say something would be negative with broadening the molecular weight distribution of callback.

[00:07:58] Speaker 01:
What the board simply says is even though one is looking at callback, which is the single obviousness reference, and even though Deichen's argument is that you would just increase that melt-full rate, somebody would still be willing to do that even though callback itself teaches that

[00:08:17] Speaker 01:
narrow molecular weight distributions are better.

[00:08:19] Speaker 01:
It does not cite any particular evidence, however, suggesting that broadening the distribution is worse.

[00:08:26] Speaker 01:
It just doesn't really engage on the issue because it finds that callback descriptions of narrow molecular weight distribution.

[00:08:34] Speaker 04:
Yeah, I was asking more about what callback discloses.

[00:08:39] Speaker 04:
Does callback tell us what the negative effect is by broadening the molecular weight distribution?

[00:08:46] Speaker 01:
What Callback tells us is that broadening the molecular weight distribution has, it was consistently known to be the way to increase melt flow rate because you were able to combine multiple different molecular weights.

[00:09:01] Speaker 01:
And, you know, it goes through some processes for how you would do that, but it doesn't say that there is one particular bad thing with broadening molecular weight distributions.

[00:09:12] Speaker 01:
What it says is that narrow is actually better.

[00:09:14] Speaker 01:
And so what Callback's invention is and what Callback teaches is don't do all these methods that were previously known for broad because what I found is you can get great results just by using a narrow molecular weight distribution.

[00:09:30] Speaker 01:
And Your Honors, again, I would just point to the fact that we're having this discussion because the board took it upon itself to review and try to figure out what a skilled artisan would think that Callback teaches

[00:09:44] Speaker 01:
when Dyken never presented any evidence on this point.

[00:09:47] Speaker 01:
So we didn't have the notice and opportunity to respond.

[00:09:50] Speaker 01:
Now, had Dyken made the argument that Callback was not teaching that you should go with a narrow molecular weight distribution, or that there's so many other reasons why a skilled artist in reading Callback would say, no, let me just broaden that distribution anyway, we would have come in with significant more support

[00:10:09] Speaker 01:
highlighting all the reasons why reading Callback, a skilled artisan, wouldn't think, yes, let me broaden the distribution.

[00:10:16] Speaker 01:
Maybe it won't work as well.

[00:10:17] Speaker 01:
So, you know, one of the things that Callback does teach is that even Callback doesn't know why it got such good performance with its polymer.

[00:10:28] Speaker 03:
So a skilled artisan reading that.

[00:10:30] Speaker 03:
There isn't evidence in the record in Callback and in other places that

[00:10:36] Speaker 03:
Many people believe that broadening was beneficial, right?

[00:10:42] Speaker 01:
No, Your Honor, I agree that many people believed broadening was beneficial and Callback itself discusses those people and why they thought that was the case and debunks that theory.

[00:10:54] Speaker 01:
So Callback's invention is that all those other people were wrong.

[00:10:58] Speaker 01:
You don't need that broad distribution in order to get these high processing speeds at a superior quality.

[00:11:05] Speaker 01:
So that's why it's so key to callback, which, again, is the reference that Dyken chose to rely on.

[00:11:10] Speaker 01:
So it needed to use callback polymer as the starting point.

[00:11:15] Speaker 01:
That's where we are.

[00:11:15] Speaker 01:
We're talking about whether modifying callback would be obvious to achieve the claimed invention, not just any polymer out there.

[00:11:26] Speaker 01:
So on that point, we have to look at what callback tells you to do and what callback tells you not to do.

[00:11:33] Speaker 01:
Deiken did not engage it.

[00:11:35] Speaker 03:
Does it say that just because something says that one approach is better is not a teaching away, right?

[00:11:42] Speaker 01:
Again, Your Honor, what I would say is that taking callback holistically as we have to, reading the reference as a whole, what callback tells you is that it... But answer my question.

[00:11:52] Speaker 03:
I mean, we have said, have we not, that just because something teaches that one approach is better is not a teaching away.

[00:12:01] Speaker 01:
Yes, Your Honor.

[00:12:02] Speaker 01:
I think, though, what is happening in Colbeck is that it's assessing much more than just a preference of something is better.

[00:12:09] Speaker 01:
It is saying, with my polymer, do this.

[00:12:12] Speaker 01:
And so this might be a different case if we were talking about a motivation to combine multiple different references that showed you can still get all the great benefits that Colbeck got by just doing something a little bit differently.

[00:12:26] Speaker 01:
And so a skilled artisan would look at all this information

[00:12:29] Speaker 01:
I believe that I'm into my bubble time if I could just finish this answer.

[00:12:32] Speaker 01:
Yes, please do.

[00:12:34] Speaker 01:
Thank you.

[00:12:35] Speaker 01:
So it would be a different situation if we were talking about combining multiple references.

[00:12:41] Speaker 01:
We're not here.

[00:12:42] Speaker 01:
We're talking about one single reference, which means that it is the starting point.

[00:12:47] Speaker 01:
And Dyken needed to show there was a motivation.

[00:12:49] Speaker 01:
Somebody looking at this would think, yeah, it does make sense for me to increase melt flow rate, even though Callback says it already goes pretty fast.

[00:12:58] Speaker 01:
It already creates great polymer.

[00:13:00] Speaker 01:
I don't even know why it does, but this is great.

[00:13:03] Speaker 01:
And then beyond that, to say, and I'm going to do so, even though all known methods would increase, excuse me, broaden molecular weight distribution, which Kalbeck consistently says, that's not what my invention's about.

[00:13:17] Speaker 01:
So it's a more holistic approach than simply a straight teaching away argument.

[00:13:21] Speaker 01:
It's looking at the reference as a whole and seeing what does it teach and why would a skilled artist do anything with it.

[00:13:27] Speaker 01:
And that's where Diken

[00:13:28] Speaker 01:
did not present the requisite proof.

[00:13:31] Speaker 01:
If there are no further questions, I'll save my remaining time for rebuttal.

[00:13:34] Speaker 00:
Anything else for Ms.

[00:13:35] Speaker 00:
Freireller at this point?

[00:13:39] Speaker 00:
Okay, thank you.

[00:13:40] Speaker 00:
We'll hear from Mr. Kassadius.

[00:13:45] Speaker 02:
Thank you, Judge Newman.

[00:13:46] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:13:50] Speaker 02:
Substantial evidence and proper legal rulings support the Board's decision in this case.

[00:13:57] Speaker 02:
It should be affirmed.

[00:13:58] Speaker 02:
And I'd like to start with the colloquy that Judge Dyk had with my friend during the opening argument, particularly having to do with teaching away.

[00:14:08] Speaker 02:
Because I think that an explanation of what Kimura's teaching away argument is really unpacks the problem with their appeal.

[00:14:19] Speaker 02:
In the first place, what a prior art reference teaches is a question of fact.

[00:14:24] Speaker 02:
My friend seems to think that this court can construe this patent as though it is a patent being construed for claim construction, and that's just not so.

[00:14:35] Speaker 02:
The board made particular findings based on substantial evidence, and they haven't been shown to be clearly erroneous.

[00:14:42] Speaker 02:
Now what my friend tries to do, and I think she said this in almost these words during her argument, is to say that Deakin didn't argue

[00:14:53] Speaker 02:
that Kalbach doesn't teach away, as though somehow or another, it was our burden to prove the absence of a teaching away on this record.

[00:15:01] Speaker 02:
And of course, that's not the case, and that's not how the board understood it.

[00:15:05] Speaker 00:
But why is this really, I appreciate that we've been focused on teaching away, but isn't the question really whether the prior art suggests

[00:15:18] Speaker 00:
and motivates the particular molecular weight mix that they finally came up with.

[00:15:25] Speaker 02:
That is the initial question, Judge Newman.

[00:15:30] Speaker 02:
And I would say that on that issue.

[00:15:32] Speaker 00:
Isn't that the only question?

[00:15:34] Speaker 00:
And whether, in fact, as they argue, that once we know that there is a better method, an improved result with the molecular weight

[00:15:47] Speaker 00:
with a polymer structure that they have, we then reconstruct and find that in the prior art, but that the prior art does not suggest that this is the way to go.

[00:16:01] Speaker 00:
Isn't that their best argument and, in fact, a difficult one to respond to?

[00:16:09] Speaker 02:
Well, I guess I might agree that it's their best argument.

[00:16:12] Speaker 02:
I wouldn't agree that it's a difficult one to respond to.

[00:16:15] Speaker 00:
Well, that was my question for you.

[00:16:17] Speaker 02:
Okay.

[00:16:18] Speaker 02:
And I'm going to answer that and show you that it's not that particularly difficult to resolve here.

[00:16:26] Speaker 02:
If the only prior art at issue and the only thing that we are taking into the person of ordinary skills, that hypothetical person's knowledge, was callback, we still have, and the board found, a closed melt flow rate range

[00:16:42] Speaker 02:
starting at 15 grams per 10 minutes with a practical maximum value that is well above the 30 that is disclosed in the Chemours patents here.

[00:16:54] Speaker 02:
That's one finding of the board.

[00:16:56] Speaker 02:
It hasn't been challenged with any meaningful substantial evidence coming from the other side.

[00:17:02] Speaker 02:
But the board also made an alternate finding, and that is that a person of ordinary skill

[00:17:07] Speaker 02:
armed with what a person of ordinary skill would be armed with, and that includes the prior references like CONO, which is cited at A44, like TULI, also cited at that page, which show melt flow rates of up to 50 grams per 10 minutes, with CONO saying 30 to 45 grams per 10 minutes were preferred, with part of that knowledge of the person of ordinary skill.

[00:17:33] Speaker 02:
So they knew, this hypothetical person of ordinary skill knew, and the board found that you could go, even if the only disclosure in callback was that 24 grams per 10 minutes melt flow range, you could go slightly upward to the 27, which is the low end of the plus or minus 30 range that's disclosed, that's claimed rather, in the Chemours patents.

[00:18:00] Speaker 02:
That very modest uptick

[00:18:03] Speaker 02:
was well within the zone of what the person of ordinary skill would have understood.

[00:18:08] Speaker 02:
And that's true even if you take into account the teaching away argument, an argument, by the way, that Comoros itself disclaimed before the Patent Office in its Patent Owner's Sir Reply Brief at page A2836.

[00:18:27] Speaker 02:
But let's say that teaching away is still on the table.

[00:18:30] Speaker 02:
What does Callback tell us about

[00:18:33] Speaker 02:
this molecular weight distribution range.

[00:18:39] Speaker 02:
It tells us at column three that the polymer has a very narrow molecular weight distribution, and then it says IE, a ratio of MW to MN of less than about two.

[00:18:53] Speaker 02:
So if we take that as a definition, which we don't have to, the board certainly didn't, but let's give them the best case that they possibly could have and take that as a definition.

[00:19:03] Speaker 02:
a molecular weight distribution ratio of less than about 2, what's the molecular weight distribution of their preferred embodiment with the MFI value of 24?

[00:19:12] Speaker 02:
Well, what you know is that that's only got a 1.6 molecular weight distribution.

[00:19:21] Speaker 02:
So that person of ordinary skill, even if all he's got in front of him is Kalbach, knows that he could nudge up that 24 melt flow rate

[00:19:31] Speaker 02:
to 27, 28, 29, 30 without having an appreciable effect on molecular weight distribution.

[00:19:39] Speaker 04:
What about the language at column five that was referenced earlier, column five, lines 25 to 27, where it says that this can result in a broadening of molecular weight distribution and negatively affect performance.

[00:19:57] Speaker 02:
Why is that not teaching away?

[00:20:00] Speaker 02:
Judge Raina, as my friend said, and quite correctly, the board was obligated to take callback as a whole.

[00:20:09] Speaker 02:
And as Judge Dyke properly pointed out, the callback as a whole suggests that this aspect of the specification is described as something that performs better.

[00:20:22] Speaker 04:
And even if there is something that generally might not... It doesn't catch the language in terms of

[00:20:29] Speaker 04:
performance.

[00:20:30] Speaker 04:
It simply says that broadening molecular weight distribution will negatively affect performance.

[00:20:37] Speaker 04:
That seems to say that any type of action you take that's going to broaden molecular weight distribution, you shouldn't do that because it negatively affects the performance.

[00:20:47] Speaker 04:
Is that not teaching away?

[00:20:52] Speaker 02:
No, it's not teaching away at all.

[00:20:54] Speaker 02:
Even if that was all that there was in the document, that wouldn't be a teaching away

[00:20:58] Speaker 02:
The teaching away has to be something along the lines of a stop sign, something that says that discourages a particular path or would lead the person of ordinary skill in a divergent direction.

[00:21:14] Speaker 00:
And that's what I'm about to call them.

[00:21:19] Speaker 00:
I just wanted to interject.

[00:21:20] Speaker 00:
However you characterize it, the opposite.

[00:21:24] Speaker 00:
It's hard to find there an affirmative motivation and suggestion to go in that direction.

[00:21:32] Speaker 00:
And isn't that the standard?

[00:21:34] Speaker 02:
Oh, but callback isn't the only thing that the person of ordinary skill knew about.

[00:21:39] Speaker 02:
The standard and the motivation does not just have to come from callback.

[00:21:43] Speaker 02:
In fact, the board was entitled to and did consider callback from the perspective of person of ordinary skill.

[00:21:50] Speaker 02:
And in light of the prior art, which showed that not only

[00:21:53] Speaker 02:
Was there much teaching of higher melt flow rates having excellent outcomes without faults and with stabilized FEP compositions as in callback?

[00:22:08] Speaker 02:
That entirety of the prior art, yes, Trish, ring him.

[00:22:14] Speaker 04:
What about the language of column three, line 60 through 65 where it discusses

[00:22:20] Speaker 04:
that a narrow molecular weight distribution, that it has not been discovered that a narrow molecular weight distribution performs better, thus overcoming a well-established prejudice.

[00:22:35] Speaker 04:
So it's suggesting that a POSA would come possessed with this well-established prejudice and that there's nothing, it had not been discovered that a narrow molecular weight performs better.

[00:22:52] Speaker 04:
that in addition to the negative effect statement.

[00:22:59] Speaker 02:
So I guess if I want to make sure I'm answering your question, Joe, I think you're asking me if this language at the bottom of column three in the despite a narrow molecular weight distribution language reflects the teaching away.

[00:23:13] Speaker 02:
Again, I point out that

[00:23:18] Speaker 02:
It was not our burden to negative this in the first instance.

[00:23:23] Speaker 02:
There was plenty of indication in the art to make out our prima facie case.

[00:23:28] Speaker 02:
The opening argument didn't seriously contest that, other than to suggest that callback itself doesn't provide the motivation.

[00:23:35] Speaker 02:
And quite frankly, one of the other aspects of this that I haven't underscored yet, but that's very important, is that this molecular weight distribution aspect of the argument, aside from having been disclaimed in the patent office and aside from

[00:23:47] Speaker 02:
not being nearly as clear as Kimura's would hope, is not even an element or a limitation of the Kimura's patent claims in this suit.

[00:23:59] Speaker 02:
All of these are questions of fact.

[00:24:01] Speaker 02:
The burdens were properly allocated.

[00:24:04] Speaker 02:
The law was properly applied.

[00:24:06] Speaker 02:
There is some evidence that supports Kimura's case, but there was other evidence that was against it.

[00:24:14] Speaker 02:
The board quite properly resolved those issues in resolving this case on proper, evidentially supported findings of fact.

[00:24:24] Speaker 03:
Mr. Castanhas, before we sit down, would you please address the secondary considerations, the objective indicia, because it strikes me that the board's approach to that was somewhat problematic and that

[00:24:43] Speaker 03:
We may need a remand to have them consider objective indicia against the prima facie case that you argue exists here.

[00:24:57] Speaker 02:
I don't really see here why a remand should be necessary because the board in fact did consider those secondary considerations.

[00:25:05] Speaker 02:
It started with the required nexus inquiry.

[00:25:08] Speaker 03:
But I mean some of it is not correct, right?

[00:25:12] Speaker 03:
the patent ensued as a blocking patent, that's not correct.

[00:25:17] Speaker 02:
Well, and let me explain what the board's observations on that reflect.

[00:25:26] Speaker 02:
The board discussed blocking patents at page 57 of the appendix.

[00:25:33] Speaker 02:
And it has to be understood in the vein

[00:25:38] Speaker 02:
that the board was talking about entirely here.

[00:25:40] Speaker 02:
And that is that this was a burden which Kimmours had, which it failed to satisfy with regard to Nexus and then assuming that.

[00:25:51] Speaker 03:
Do you agree that the patent and suit can't be a blocking patent?

[00:25:57] Speaker 02:
I would agree, generally speaking, the patent and suit can't be a blocking patent.

[00:26:01] Speaker 02:
But what I would also say is that you should understand the board's comment, because we didn't make this argument.

[00:26:07] Speaker 02:
The board's comment was not about the blocking patent in and of itself being a showstopper with regard to secondary considerations, but it was really a commentary on the lack of meaningful context that was provided by Chemours putting in nothing more than their bare gross sales numbers as the proof of nexus and commercial success.

[00:26:28] Speaker 02:
And the board was right as simply as a factual matter.

[00:26:33] Speaker 02:
to point out that commourse patents whether they're categorized as blocking patents or not uh... might well have uh... deterred competition once they were issued in two thousand bit and might have been and this is just speculation on the board's part because the board didn't offer much more than an extraordinarily weak case as the board pointed out on repeated occasions of secondary consideration yesterday yeah would you also agree that that

[00:27:02] Speaker 04:
we don't require that market share data is required to show commercial success.

[00:27:10] Speaker 04:
Would you agree with that?

[00:27:14] Speaker 04:
And I hear what the board did is they did rely in part anyway, the nexus argument on market share and said that there was no market share data that was submitted and that for that reason,

[00:27:32] Speaker 04:
They were not able to show commercial success, but they did provide sales data.

[00:27:40] Speaker 02:
That's right.

[00:27:41] Speaker 02:
They did provide sales data, but nothing more.

[00:27:43] Speaker 02:
And the board gave that the weight that it deserved, which was some, but not much.

[00:27:48] Speaker 04:
No, I think the board said that you did not provide market share data, and therefore you don't show commercial success.

[00:28:01] Speaker 02:
It says, the board says at page 57 of the appendix, a patent owner presents gross sales figures for FEP 9494, but such gross sales figures, particularly in the absence of a defined market, are inadequate to establish commercial success, citing its own opinion in Ex Parte Gela, which in turn cited this court's decision in Cable Electric, which holds that what mere gross sales figures show in relation to commercial success is, quote, fairly minimal.

[00:28:31] Speaker 02:
And that's exactly what the board did here.

[00:28:33] Speaker 02:
It didn't say that there was going to be no weight given to it.

[00:28:36] Speaker 02:
In fact, quite the contrary.

[00:28:38] Speaker 02:
When you look at what the board said in the end, it fully considered, and this is at page 858, the fully developed record evidence, but was not persuaded.

[00:28:47] Speaker 02:
It didn't categorically exclude this evidence.

[00:28:50] Speaker 02:
It simply said that this evidence is going to be considered as part of the calc.

[00:28:57] Speaker 02:
I know I'm close to out of my time.

[00:29:01] Speaker 02:
I predicted that pretty well.

[00:29:04] Speaker 02:
In the end, Your Honors, the Board, in this case, reached the correct decision on correct law and the factual findings that were supported by the administrative record, which it considered entirely.

[00:29:15] Speaker 02:
Its final written decision should be affirmed.

[00:29:17] Speaker 02:
Once the Court has further questions, we'll submit on the arguments and briefs.

[00:29:21] Speaker 00:
Any more questions for Mr. Costanious?

[00:29:25] Speaker 00:
No, I hear none.

[00:29:26] Speaker 00:
All right.

[00:29:27] Speaker 00:
Ms.

[00:29:29] Speaker 00:
Fiorella, you have your rebuttal time.

[00:29:34] Speaker 01:
Thank you, Your Honor.

[00:29:34] Speaker 01:
I'd like to start with the objective indicia.

[00:29:37] Speaker 01:
As members of this panel have already espoused, the board made a number of errors here, and I believe that we briefed them, so I won't go through them in detail here, just point out one or two things.

[00:29:49] Speaker 01:
One, although my friend on the other side tries to suggest that the board didn't actually find that the challenge patents were blocking patents and cause a commentary, that simply is not what the board did.

[00:30:01] Speaker 01:
It cited blocking patent law.

[00:30:03] Speaker 01:
It used the term blocking patents, and it specifically said that the challenge patents blocked innovation.

[00:30:09] Speaker 01:
That was legally wrong and cannot and is not the law.

[00:30:13] Speaker 01:
And so for that reason alone, the board erred.

[00:30:16] Speaker 01:
With respect to the market share data, again,

[00:30:19] Speaker 01:
My friend on the other side suggests that the board was simply saying market share data would have been nice.

[00:30:25] Speaker 01:
That's not what the board said.

[00:30:26] Speaker 01:
The board said that close sale data was insufficient to show commercial success because there wasn't market share data.

[00:30:33] Speaker 01:
That's not what this court has held as we've discussed in our brief.

[00:30:37] Speaker 01:
And then on the broader nexus point, which again we have in our brief, but I'm happy to answer questions on.

[00:30:43] Speaker 03:
The board does in the middle of 57 go on to say,

[00:30:48] Speaker 03:
that proper commercial success analysis requires according to the appropriate weight in such evidence and then it's characterized as weak evidence.

[00:30:59] Speaker 03:
I'm not sure what dismissal is it.

[00:31:04] Speaker 01:
I'm sorry.

[00:31:05] Speaker 01:
I'm sorry you cut out again, Judge Day.

[00:31:07] Speaker 01:
Could you repeat that last one?

[00:31:08] Speaker 03:
The board statements in the middle of 57 don't seem to dismiss the evidence entirely but rather to characterize it as weak evidence.

[00:31:20] Speaker 01:
Your Honor, I would say that when you're reading the previous paragraph where the board actually talks about what weight it gave the gross sales data, it shows that it gave it none.

[00:31:30] Speaker 01:
And simply in the next paragraph says, all this other evidence that we presented, which we presented significant evidence on commercial success, ultimately it found it weak because it said, I can't figure anything out with it without market share data.

[00:31:44] Speaker 01:
So it all flows together.

[00:31:47] Speaker 01:
I see that I'm out of time.

[00:31:48] Speaker 01:
If I could just finish the answer to this question.

[00:31:51] Speaker 00:
Please answer the question.

[00:31:52] Speaker 00:
We'll see if the panel has any more questions.

[00:31:55] Speaker 01:
Thank you.

[00:31:56] Speaker 01:
So I apologize, Judge Seitz.

[00:31:59] Speaker 01:
But what I was saying is that the board already had said that it wasn't going to consider gross sales data because it didn't have market share data.

[00:32:08] Speaker 01:
And then simply just saying that the evidence is weak doesn't suggest that it actually considered that data under the proper legal standards.

[00:32:16] Speaker 01:
So I would say that it's still an error of the board to have essentially said that they didn't need to consider it at all.

[00:32:24] Speaker 01:
If there are any further questions I'm happy to address, otherwise we would submit the case by saying that we believe that the board's decision should be reversed.

[00:32:34] Speaker 00:
Okay, any more questions for Ms.

[00:32:35] Speaker 00:
Fiorella?

[00:32:38] Speaker 00:
I hear none.

[00:32:39] Speaker 00:
All right, with thanks to counsel, the case is taken under submission.