[00:00:00] Speaker 01:
2344 Campbell Soup versus Gammon.

[00:00:03] Speaker 01:
Ms.

[00:00:03] Speaker 01:
Quinn, please proceed.

[00:00:06] Speaker 01:
Thank you, Your Honors.

[00:00:07] Speaker 01:
May it please the Court?

[00:00:08] Speaker 01:
The Patent Trial and Appeal Board found this case to present one of the rare instances in which evidence of secondary considerations of non-obviousness outweigh the evidence of obviousness.

[00:00:18] Speaker 01:
We submit that determination was wrong.

[00:00:20] Speaker 01:
This Court should review it de novo and enter judgment of obviousness.

[00:00:24] Speaker 01:
This Court already has held

[00:00:26] Speaker 01:
that the differences between Gammon's claim designs and the prior art LINZ patent are, quote, ever so slight, close quote.

[00:00:33] Speaker 01:
The board recognized it was bound by that factual finding, and in light of it, correctly found that LINZ, both alone and in combination with Samways, has the same overall visual appearance as the claim designs.

[00:00:46] Speaker 01:
We believe that point is well illustrated by the overlay of LINZ and the claim design that's shown on page 37 of our opening brief.

[00:00:54] Speaker 01:
The board nevertheless held that purported evidence of copying and commercial success was so strong that it outweighed this evidence of obviousness.

[00:01:02] Speaker 01:
That decision was wrong for several reasons.

[00:01:05] Speaker 01:
First and perhaps most important, the board found that design patent owners do not need to show a nexus between the unique characteristics.

[00:01:13] Speaker 01:
This is Judge Frouts.

[00:01:14] Speaker 02:
Why is that the most important thing since they did alternatively hold that even if it did, there's a presumption, even if there's no presumption, there's still nexus?

[00:01:24] Speaker 02:
So even if we dislodge or disagree with their global assertion that Nexus doesn't even apply, you've still got a few other hurdles to get through, right?

[00:01:35] Speaker 01:
We do, Your Honor.

[00:01:36] Speaker 01:
And actually, perhaps what I should say is it's most important, perhaps from a presidential perspective, for this Court to correct the Board in its erroneous assumption that design patentees are held to a different legal standard.

[00:01:48] Speaker 01:
But for purposes of this case, you're right, I'm happy to jump straight to what the Board did find.

[00:01:53] Speaker 01:
The board found a presumption of nexus that was wrong for two reasons.

[00:01:59] Speaker 01:
First, it misapplied the coextensiveness requirement.

[00:02:02] Speaker 01:
And second, it used the same evidence of secondary considerations that this court already has found to support a finding of non-obviousness in connection with a claim of the 111 utility patent.

[00:02:15] Speaker 01:
So the same evidence that this court has found was established a nexus for commercial success

[00:02:22] Speaker 01:
in connection with a utility patent claim directed to functional features of a gravity feed dispenser can't be used under Fox Factory.

[00:02:30] Speaker 03:
Wait, Council, this last point that you're making I find very confusing.

[00:02:35] Speaker 03:
We sometimes read factual findings that come up in two different cases on the identical facts and we have to affirm both of them as supported either by substantial evidence or not clearly erroneous.

[00:02:49] Speaker 03:
This too, this nexus concept is a fact finding.

[00:02:54] Speaker 03:
Couldn't one jury, or in this case board, couldn't the board find there's nexus between the secondary considerations and the utility patents and then the, and we'd have to affirm because there's not clear error.

[00:03:07] Speaker 03:
And couldn't then the board also find their secondary consideration between the commercial success and the design patent.

[00:03:14] Speaker 03:
And again,

[00:03:15] Speaker 03:
we might have to affirm because it's not clearly erroneous.

[00:03:19] Speaker 03:
We don't review this de novo.

[00:03:21] Speaker 03:
So isn't it possible that more than one patent could be attributed as the basis for or substantially the basis for the success?

[00:03:31] Speaker 01:
It is possible, Your Honor.

[00:03:32] Speaker 01:
It comes up in two contexts.

[00:03:33] Speaker 01:
First, there's the presumption of nexus, which is what the court was dealing with in Fox Factory.

[00:03:37] Speaker 01:
And what the court said there is, yes, it's possible, but it's typically in the case where you have related patents

[00:03:42] Speaker 01:
with claims that still are directed to the essential features of the invention, which is pretty far removed from what we have here with the claims of a design patent versus claims of a utility patent.

[00:03:53] Speaker 01:
And the evidence has already been shown to support a finding of Nexus as to the claims of the utility patent.

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But moving directly here as to whether there was evidence to support the board's factual finding of a Nexus, we submit that there simply was not.

[00:04:10] Speaker 01:
because what you have to look for is a nexus between the unique characteristics of the claim design and whatever the assorted secondary consideration is.

[00:04:20] Speaker 01:
So there has to be a nexus between the ever so slight differences between the gammon designs and lins, you know, the difference in the shape of the stops or some minor difference in proportionality.

[00:04:30] Speaker 01:
It has to be, there has to be a nexus between those differences, those unique characteristics of the claim designs.

[00:04:36] Speaker 01:
and the evidence that's submitted of commercial success and copying.

[00:04:40] Speaker 01:
And that evidence simply is not here in this record.

[00:04:43] Speaker 03:
Well, so, Counsel, my reading of the evidence is stuff like the market surveys.

[00:04:48] Speaker 03:
It's great to have that label up front where you can see it.

[00:04:51] Speaker 01:
Well, that's true for Linn-Sulso, isn't it?

[00:04:54] Speaker 01:
It is, Your Honor.

[00:04:55] Speaker 01:
That's exactly right.

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And that's why we say that is not one of the unique characteristics of the Gammon invention.

[00:05:02] Speaker 03:
So would it be fair?

[00:05:07] Speaker 03:
to design that are nearly identical, as in this case, as we previously found, that any commercial success or secondary considerations, if you're going to attribute it to design, it really has to be attributed to those very small differences.

[00:05:27] Speaker 03:
In this case,

[00:05:28] Speaker 03:
the shape perhaps of the label is slightly different, right?

[00:05:32] Speaker 03:
The Linz reference tends a little more towards square and maybe the design, claim design tends a little more towards a vertical rectangle.

[00:05:42] Speaker 03:
But I mean it's not a big difference.

[00:05:44] Speaker 03:
But nonetheless, I just didn't see any of the secondary consideration focusing on the shape or particular size of the label as the basis for what made this new

[00:05:57] Speaker 01:
device so great.

[00:05:59] Speaker 01:
Is that pretty much your argument?

[00:06:01] Speaker 01:
It is, Your Honor.

[00:06:02] Speaker 01:
That's exactly our argument.

[00:06:03] Speaker 01:
That's what needed to be found, and the board didn't find it because it's not there.

[00:06:08] Speaker 01:
Instead, we got conclusory statements from the board that the claim designs contributed to commercial success.

[00:06:13] Speaker 01:
But when you go into the record, there is not a single mention in the evidence of record as to the shape of the stops or the particular minor variations in the shape of the label area.

[00:06:24] Speaker 01:
What consumers were reacting to was the overall reconfiguration of the shelf and the fact that they could, yes, they could find soups more quickly, which is attributable to the extent it's relevant to the gravity feed dispenser at all.

[00:06:36] Speaker 01:
It's attributable to the functionality of the gravity feed dispenser.

[00:06:39] Speaker 01:
rather than those ever so slight differences between Gammon and LINZ.

[00:06:43] Speaker 00:
Council, what about size?

[00:06:44] Speaker 00:
I thought I saw maybe just a little bit about the label being big enough to see.

[00:06:51] Speaker 00:
What about that?

[00:06:52] Speaker 00:
Is the modified version of LINZ as modified?

[00:06:56] Speaker 00:
Does it have the same size?

[00:06:58] Speaker 01:
Your Honor, if you look at the overlay on page 37 of the brief, you'll see that the size of the LINZ label area is almost identical to the size of the Gammon label area.

[00:07:08] Speaker 01:
There's nothing new there.

[00:07:10] Speaker 00:
And if there was something, even if there was a small difference, do you think that there's evidence of objective considerations that support a nexus between that evidence and the claim?

[00:07:25] Speaker 01:
I do not, Your Honor, because, again, now what consumers are reacting to is the label itself, the soup label, with all the inherent goodwill that Campbell has built up in its soup trade dress.

[00:07:36] Speaker 01:
There's nothing to suggest that it's the ornamentality

[00:07:40] Speaker 01:
of the structure behind the label that consumers are responding positively to.

[00:07:45] Speaker 01:
There's nothing to suggest that consumers are paying any attention to anything ornamental about the gravity feed dispenser at all.

[00:07:51] Speaker 01:
They're happy they can find their soup.

[00:07:53] Speaker 01:
which has to do with signage and organization on the shelf.

[00:07:56] Speaker 01:
And yes, it has to do with the sample.

[00:07:59] Speaker 03:
The evidence of the market reactions to having that label, that felt very utilitarian to me.

[00:08:07] Speaker 03:
People liked seeing the big label.

[00:08:08] Speaker 03:
It made it easier for them to find the soup they were looking for, possibly made the soup even look more appealing to purchase.

[00:08:15] Speaker 03:
But all of that seemed to be the utilitarian function

[00:08:18] Speaker 03:
of having this large label on display as opposed to the ornamentality.

[00:08:23] Speaker 03:
Because keep in mind, the design patent itself is blank, right?

[00:08:27] Speaker 03:
It doesn't have that pretty picture of the soup on it.

[00:08:31] Speaker 01:
It's exactly right, Your Honor.

[00:08:32] Speaker 01:
This is not a case when you think about ornamentality driving

[00:08:38] Speaker 01:
commercial success.

[00:08:39] Speaker 01:
You think of it more in the context of a design patent for jewelry, for example.

[00:08:42] Speaker 01:
You're selling the design.

[00:08:43] Speaker 01:
Consumers are reacting to the design.

[00:08:45] Speaker 03:
China, right?

[00:08:46] Speaker 03:
China.

[00:08:47] Speaker 03:
You know, like, you know, every people have their particular pattern of China.

[00:08:50] Speaker 03:
The plate might be identical, but you're buying it because you like the pattern.

[00:08:54] Speaker 01:
Correct, Your Honor.

[00:08:55] Speaker 01:
So, whereas here, there's nothing to suggest that consumers are reacting in any way to the look

[00:09:00] Speaker 01:
of the gravity feed dispenser itself and certainly not to whatever the perceived ever so slight differences are between that and the lens patent.

[00:09:10] Speaker 02:
And you need to say a similar argument with respect to the board's conclusions on copying, right?

[00:09:15] Speaker 02:
That the features they were referring to are the features that were found in prior art lens, right?

[00:09:21] Speaker 01:
Correct, Your Honor.

[00:09:21] Speaker 01:
And I would just further note on that that this court has consistently held and as recently as a couple months ago reiterated

[00:09:28] Speaker 01:
that you have to have something more than the fact of copying to make that action significant.

[00:09:33] Speaker 01:
There has to be something about the alleged copying that indicates that copying was driven by the non-obviousness of the claim design.

[00:09:40] Speaker 01:
And we just don't have that here.

[00:09:42] Speaker 01:
All we have here is a situation where Campbell bought dispensers from Gammon, decided to terminate that relationship and buy dispensers from another supplier, from Trinity.

[00:09:51] Speaker 01:
And so, yes, Campbell had access to the Gammon dispensers because it used to be a customer of Gammon.

[00:09:56] Speaker 01:
And yes, the Gammon dispensers and the Trinity dispensers are similar to each other, just like they're both similar to lint.

[00:10:01] Speaker 01:
But there's nothing about that evidence that suggests there was some meaningful copying here of something about the Gammon designs that was not obvious.

[00:10:10] Speaker 01:
So in our view, that evidence is just simply not meaningful.

[00:10:16] Speaker 03:
OK, why don't you save your rebuttal time?

[00:10:17] Speaker 03:
Let's hear from opposing counsel.

[00:10:20] Speaker 03:
Thank you, Anna.

[00:10:21] Speaker 04:
Thank you, Anna.

[00:10:22] Speaker 04:
May I please report?

[00:10:24] Speaker 04:
The initial question here, of course, of the obvious stuff based on, not obvious, based on the secondary considerations, the only attack is really made on the nexus of the commercial success, which is $30 million of sale of these exact products to Campbell Soup and their imitation of R-Rack.

[00:10:46] Speaker 04:
Didn't that imitate Lynch?

[00:10:47] Speaker 04:
They could have imitated anything they wanted in the prior art, but they didn't.

[00:10:50] Speaker 04:
They chose to copy the patented design.

[00:10:53] Speaker 04:
And then the nexus of that is established by myriad references in the opinion of the board.

[00:11:04] Speaker 04:
Certainly Campbell's Soup would present the design as in these full-page pictures of the appearance of this product.

[00:11:14] Speaker 04:
uh... on display and the fact that the sign mimics the trade distress of the camp below it is something which has not been done at all there was an iconic camels who can from back in the day of Andy Warhol i guess probably sooner or earlier

[00:11:29] Speaker 04:
But the fact that you had this relationship between the Campbell Soup can and the sign shape above it, you had a distancing of it, which was aesthetically pleasing.

[00:11:40] Speaker 04:
All these things were the details that they copied.

[00:11:42] Speaker 04:
To say that unique characteristics are the same as these small differences that are identified, which are myriad in this design.

[00:11:50] Speaker 00:
Did you hear Chief Judge Moore's point about how the design doesn't even include the label itself, that iconic label you referred to?

[00:11:59] Speaker 04:
That's correct.

[00:12:01] Speaker 04:
The shape of the can is the thing that is being emulated, and the relationship of the can to the sign and its positioning is a thing of significance, and that's what was copied.

[00:12:11] Speaker 04:
And that's what was giving it commercial success, too.

[00:12:14] Speaker 04:
And if you look at the size of the sign alone, increasing the size of the sign relative to the can isn't necessarily proof, you know, if you look at the different

[00:12:25] Speaker 04:
images we have here.

[00:12:28] Speaker 03:
And which piece of your evidence says that?

[00:12:31] Speaker 03:
Which pieces of your objective considerations focus on the differences between Linz and your claim design?

[00:12:41] Speaker 04:
It's not necessary, Your Honor, to do that because the question is, under LA GEAR, what's the overall appearance?

[00:12:47] Speaker 04:
if the overall appearance is popular, it's not like people are going to identify, you know, gee, I like the buttons on their shirt or something when they buy something, which is the overall appearance of the product, which gives the design its value and its linkage to the desirability.

[00:13:01] Speaker 04:
So it's, and of course, I mean, the fact that the similarity, the copying, which was never disputed, the copy, oh, I'm sorry.

[00:13:11] Speaker 03:
It's the overall appearance for commercial success, because by the way, that would,

[00:13:17] Speaker 03:
out for there to always be a nexus every single time if we adopted the rule that you're proposing.

[00:13:24] Speaker 03:
If we disagree that that is in fact the rule of law and that we think that it has to focus on the particular differences, especially in a case like this where the prior art is only ever so slightly different from the claim design, do you have any evidence under that test?

[00:13:42] Speaker 03:
If I believe the test is there has to be a difference,

[00:13:45] Speaker 03:
and the commercial success or the objective consideration has to focus on that difference, not the overall appearance.

[00:13:52] Speaker 03:
What evidence did you present that meets that?

[00:13:56] Speaker 04:
Well, if I draw your attention to, say, the comparison of the two drawings of the two different design paths on page eight of our brief that comes up, you can see that there's a

[00:14:11] Speaker 04:
The Nowhere design has a whole bunch of vertical stops.

[00:14:16] Speaker 03:
Sorry, you said you're directing me to page 8 of your brief?

[00:14:21] Speaker 04:
Yes.

[00:14:22] Speaker 03:
Page 8 of your brief is your statement of issues, right?

[00:14:25] Speaker 04:
Oh, no.

[00:14:26] Speaker 04:
It's number 8, I guess.

[00:14:28] Speaker 03:
I'm in the wrong brief.

[00:14:29] Speaker 03:
It's okay.

[00:14:32] Speaker 03:
Page eight of your brief.

[00:14:33] Speaker 03:
Okay, I'm there now.

[00:14:34] Speaker 03:
I'm sorry.

[00:14:34] Speaker 03:
Go ahead.

[00:14:35] Speaker 04:
In the right-hand image is an hour design pattern, the 646 pattern, which shows all these details.

[00:14:40] Speaker 04:
These are small little things, each one of which might be considered to be slight compared to the original designs or whatever the prior art is.

[00:14:49] Speaker 04:
Each of these things is different, and together they produce an overall appearance which is different, and that overall appearance is exactly what's copied.

[00:14:58] Speaker 03:
You're not focusing on my question.

[00:14:59] Speaker 03:
My question is, did you present any evidence at all in the objective consideration space which focuses on these differences as opposed to the overall appearance?

[00:15:15] Speaker 04:
I don't know if you understand the question because we know in copying we would say you copied this but you didn't copy Lintz.

[00:15:22] Speaker 04:
You copied this, you bought these racks and they weren't the Lintz racks.

[00:15:28] Speaker 04:
Is that what you're saying?

[00:15:29] Speaker 04:
I mean, I don't know if you ever proved that they didn't buy any Lintz racks but they didn't.

[00:15:33] Speaker 00:
Council, let's set aside copying.

[00:15:35] Speaker 00:
Why don't you address the other objective evidence that you submitted and answer the question.

[00:15:41] Speaker 04:
I'm sorry.

[00:15:42] Speaker 04:
Maybe I don't understand.

[00:15:42] Speaker 04:
I'm not trying to be evasive, Your Honor.

[00:15:44] Speaker 04:
I'm trying to understand your question, perhaps.

[00:15:45] Speaker 04:
I don't... I'm trying to imagine what you would imagine is the sort of evidence I would have presented, but basically, we showed that we sold these racks, and we know the prior art what it looks like, and that by itself shows the difference between them.

[00:16:03] Speaker 04:
We know the Campbells who copied these racks.

[00:16:05] Speaker 04:
We saw the difference between it and the prior art.

[00:16:07] Speaker 04:
I don't know what else can be shown.

[00:16:10] Speaker 02:
Maybe I can frame something a bit of a different way.

[00:16:12] Speaker 02:
Do you embrace, are you defending in order to win the board's position that no nexus is required at all?

[00:16:20] Speaker 04:
Oh, not at all.

[00:16:21] Speaker 04:
I think the nexus was established by, certainly by substantial evidence here, by all the things, all the praise, all the statements about the appearance of the Iraq people liking it.

[00:16:33] Speaker 04:
in combination with the, you know, the way it worked, okay, but that's a small feature.

[00:16:38] Speaker 02:
But I guess I'm unclear on your answer to Chief Judge Moore about the overall design being the only thing that's important or the only thing you look at.

[00:16:49] Speaker 04:
into the market was a copy certainly because if it will be differences between links and and art and our design are the things that uh... or camel street there's a lot of time for one of these were copied that's been established because of course success this is somewhere it says it do we have this signage which is so big or we have a little soup and which is desirable i think we do have certainly testimony by our our expert terry johnson of rest in peace who uh... who had uh...

[00:17:18] Speaker 04:
uh... testified at the proportionality of the camp to the side is a desirable thing uh... the position of it is you know an aesthetic which is apparent also and uh... and by the way the portionality of camp to the side is is not shown in any of these references with uh... also beyond the limits and that includes in their in their rather deceptive image on page thirty seven which they've they've recorded a picture some of their brief

[00:17:45] Speaker 04:
where they turn lints into sort of a green smudge and they leave out the can because if they put the can in there you would see that it was a huge can compared to the sign and the proper comparison here to be made is is seen in like the uh... the comparison of uh... when the can is the same height and that's shown in our brief uh... page forty nine which shows a comparison of what lints would look like if it were the width of a Campbell's soup can's height if we were to figure that it's a smaller

[00:18:14] Speaker 04:
The smaller thing, the sign is much less appealing and doesn't really mimic the can's shape either.

[00:18:21] Speaker 00:
Council, is it necessarily so that the width of the label must be the height of the can and otherwise functionally would not work right?

[00:18:33] Speaker 04:
Approximately, I think it's desirable to have the label as wide as possible and disproportionately.

[00:18:42] Speaker 04:
I don't think that lint is as appealing.

[00:18:44] Speaker 04:
I put in a drawing of what lint looks like.

[00:18:48] Speaker 04:
We put a bunch together, because it actually loses about, I don't know, about a sixth or so of its lateral sign shape, and it doesn't look as pleasant as ours.

[00:18:59] Speaker 04:
And that's really the decision here.

[00:19:01] Speaker 04:
The question in a design patent is not moving dimensions around, because in an obviousness world,

[00:19:09] Speaker 04:
utility patents, you can change dimensions freely, but in the design patent world, you don't change them easily.

[00:19:16] Speaker 04:
You change them, and the real issue is, in the utility patent world, it says, do you change the functionality of this device by changing sizes?

[00:19:24] Speaker 04:
In the design world, it's different.

[00:19:25] Speaker 04:
It's a narrower patent, of course, and it says, do you make it look different?

[00:19:30] Speaker 04:
And our design looks different.

[00:19:32] Speaker 04:
And that's the thing, apart from the commercial success and everything, it's secondary considerations.

[00:19:36] Speaker 04:
I don't think it's wrong to say that this is an obvious variation of lint.

[00:19:42] Speaker 04:
It's not.

[00:19:42] Speaker 04:
Lints don't show enough of any of the really good attributes of this device, this display, I should say.

[00:19:50] Speaker 04:
And as a result, it's certainly patentable.

[00:19:55] Speaker 04:
And certainly a difference of appearance that makes a difference.

[00:19:59] Speaker 04:
It makes it a desirable product.

[00:20:03] Speaker 04:
So anyway, I think that certainly is a much stronger case.

[00:20:07] Speaker 04:
And by the way, the obviousness case that was set out before the board, the board admitted that this is full of hindsight, which shouldn't be used at all.

[00:20:15] Speaker 04:
And they construed the cases, oh my goodness, that, you know, I guess we have to comply with the idea that it's so similar.

[00:20:24] Speaker 04:
But in fact, they said this is a hindsight analysis.

[00:20:28] Speaker 04:
The appearance of the can is a complete

[00:20:32] Speaker 04:
uh... hindsight guess it is an exact quote so that means that they didn't actually properly prove obviousness uh... and that is not a correct reading of uh... the prior art to say that uh... it would do that but um... and and the other point of course is that the the examiner who issued lynch is also their expert which is something we've asked uh... the court to look at and uh... and uh... and would would there would also reduce the case even more so that uh...

[00:21:01] Speaker 04:
would remove it as, you know, even farther from showing your obviousness, which we feel is not correct, because it is hindsight-based and it's improperly considered by the board under its regulations.

[00:21:21] Speaker 03:
Well, Counsel, you asked us to look at whether or not Campbell's expert could be used

[00:21:29] Speaker 03:
He was, in fact, the primary examiner of Linz.

[00:21:32] Speaker 03:
And, you know, I'm sympathetic to your argument, but the board held that it was untimely, that you didn't timely raise it.

[00:21:41] Speaker 04:
Well, that would be true if it were, say, a hearsay type of thing.

[00:21:47] Speaker 04:
But let me pose to you a different scenario.

[00:21:49] Speaker 04:
Imagine if we and Campbell Super agreed, gee, let's have, like, the examiner testify, and we decide, fuck, that he'd be good for them.

[00:21:56] Speaker 04:
The board should have said, no, no, we can't hear an examiner's testimony on the subject of the preclusive effect of his patent, and they should have not done it, even if we had agreed.

[00:22:09] Speaker 04:
In this case, the waiver, just by our procedural, it was maybe a well-certificated decision.

[00:22:19] Speaker 04:
uh... it became a harmless error in the earlier appeal because uh... the patent was found valid again and then uh... on remand we did ask for it when it was scheduled uh... but we also see a situation where this is not a situation where you can just waive your your uh... waive the propriety of the administrative proceeding by inaction of something like you know subject matter of jurisdiction more than uh... hearsay objection and uh...

[00:22:49] Speaker 04:
For that reason, we don't think it can be waived.

[00:22:51] Speaker 03:
Just to be clear, you think a potential bias of an expert is akin to subject matter jurisdiction, and that courts in general on appeal should be required to look at those kinds of concerns, even if not right?

[00:23:07] Speaker 04:
Absolutely not, Your Honor.

[00:23:08] Speaker 04:
That's not my point at all.

[00:23:10] Speaker 04:
The point is that the Patent Office Regulations, the employer, the agency that employs

[00:23:17] Speaker 04:
the A.O.J.s of the PTAB and employees of the examiners says, examiners are not to testify in any proceeding, period.

[00:23:26] Speaker 04:
Oh, excuse me, in any proceeding, with regard to any matter they had to do with in their work at the Patent Office.

[00:23:33] Speaker 04:
So, and in fact, this was brought up, and it was even mentioned in the original decision by the Federal Circuit, was gee, look, Lynch obviously has a can because

[00:23:44] Speaker 04:
Here they had all these camps cited in the prosecution history.

[00:23:48] Speaker 04:
The prosecution history of Lynch was relevant here, and therefore this is something he should not have been talking about at all.

[00:23:57] Speaker 04:
And it was mentioned by the ALJ and one of the ALJs in the first decision, in the first oral hearing, and they were going to consider it later, but they didn't revisit it, and then when I did make my motion for exclusion, they just decided, I think, to

[00:24:11] Speaker 04:
avoid the issue by letting it go through.

[00:24:14] Speaker 04:
But it is incorrect, and this should not have been a decision, you know, relying on that testimony.

[00:24:21] Speaker 04:
Or even mentioning that testimony, even hearing it or commenting on it.

[00:24:29] Speaker 04:
And I'm not sure how this would affect the whole, there's a whole issue like that, Article 3, Arthrex issue, an agency complying with its own regulations.

[00:24:36] Speaker 04:
I don't know if there's some issue that kind of touches on that.

[00:24:39] Speaker 04:
I'm not really up to date on that.

[00:24:41] Speaker 04:
I thought there might be some tangential effect on it.

[00:24:45] Speaker 04:
But I'm not sure what the consequence would be one way or the other if this was kind of enshrined as a principle that an examiner, you know, you can waive an examiner's, you can waive the agency regulations by just not objecting.

[00:25:04] Speaker 03:
Okay, Council, anything further or should we turn to Ms.

[00:25:09] Speaker 03:
Quinn-Tributtles?

[00:25:10] Speaker 04:
Well, I'd just like to ask the court to please resolve this thing until it reposes because this has been a long process and the procedure for the IPR is not supposed to be.

[00:25:23] Speaker 04:
You know, resolution, appeal, adjustment, another procedure.

[00:25:29] Speaker 04:
It's been five years on this thing.

[00:25:32] Speaker 04:
It's a grim consequence for my client that it's taken so long.

[00:25:37] Speaker 04:
And this should be resolved in the deference given to the board to resolve this matter.

[00:25:42] Speaker 04:
That's it.

[00:25:43] Speaker 04:
Thank you very much.

[00:25:43] Speaker 03:
Okay, thank you, Counsel.

[00:25:45] Speaker 03:
Mr. Quinn, you have some rebuttal time.

[00:25:47] Speaker 01:
Yes, thank you.

[00:25:48] Speaker 01:
First, I guess happily to address Mr. Tageloff's last point, this is the case that this court can put to bed.

[00:25:54] Speaker 01:
Because the evidence, this court is reviewing de novo the ultimate conclusion of obviousness here.

[00:26:00] Speaker 01:
We have an incredibly strong case for obviousness.

[00:26:04] Speaker 01:
This court's factual finding that the differences between the Gammon designs and LINZ are ever so slight is binding.

[00:26:10] Speaker 01:
This court, in making that determination, considered and rejected the arguments we're hearing again from Gammon and that the board resurfaced that putting a can in Linz is hindsight or the shape or dimensions of the can in Linz are hindsight.

[00:26:26] Speaker 01:
This court has already considered and rejected all those hindsight arguments.

[00:26:29] Speaker 01:
And what we have is ever so slight differences between the claim designs and the prior art.

[00:26:34] Speaker 01:
And what we also have, as I think we did hear conceded by counsel, no evidence to suggest

[00:26:41] Speaker 01:
that the ever so slight differences in the shape of the stops or the slight proportionality of the label area had anything to do with Campbell's success in selling soup, which is Campbell's primary business and which it has done successfully for years, including through the use of gravity feed.

[00:26:58] Speaker 03:
Address copying one more time for me because it appears that what was copied was in fact the claim design as opposed to the lense design.

[00:27:09] Speaker 01:
So what we have here, Your Honor, again, the evidence of copying such as it is, is that we switched from one supplier to another.

[00:27:16] Speaker 01:
I don't think we've seen pictures of the dispensers, but we haven't seen some sort of precise measurement to suggest whether or not copying extends down to the level of ever so slight detail that we're talking about here.

[00:27:28] Speaker 03:
Do you all dispute that what was in fact copied was the claim design?

[00:27:33] Speaker 01:
What we, Your Honor, the copying, when you're looking at a standard saying access and substantial similarity, I mean, the fact is, yes, we had access because they were our supplier.

[00:27:41] Speaker 01:
And yes, their dispensers are similar to the Trinity dispensers because they're both gravity-feed dispensers and they're both similar to LINZ.

[00:27:51] Speaker 01:
But what I would say is that, again, with this, with this core note.

[00:27:54] Speaker 03:
Council, the fact that they're both gravity-feed dispensers is irrelevant in an ornamental design patent case, right?

[00:28:00] Speaker 03:
Substantial similarity for copying would focus on the ornamentality, just like you're suggesting we should do for commercial success.

[00:28:08] Speaker 03:
So are they substantially similar in terms of their ornamentality?

[00:28:12] Speaker 01:
I think when you're dealing with differences that are as slight as they are here, I think that we'd all be chasing at straws to say that there's some fundamental difference, because we're looking at substantial similarity to those ever-so-slight differences between Linz and the Gammon designs.

[00:28:29] Speaker 01:
And again, when you look at that overlay, it's hard even to see what those differences are.

[00:28:33] Speaker 01:
So I don't think you ever get outside the realm of substantial similarity given how similar the gammon designs already are to the prior art.

[00:28:40] Speaker 01:
But I think the broader point here, Your Honor, is as this court has held repeatedly, including earlier this year in the L'Oreal versus Olaplex case, you still have to be looking for something to suggest that the evidence of copying indicates that it was a non-obviousness of the unique characteristics

[00:28:58] Speaker 01:
characteristics of the claimed invention, that was the reason for the copying.

[00:29:02] Speaker 01:
And there just isn't that evidence here.

[00:29:04] Speaker 01:
And without it, as this court again has held, you have evidence that is just not particularly meaningful on the question of secondary considerations in the absence of some other objective indicia, which we do not have here.

[00:29:19] Speaker 01:
So pending further questions from the court, I guess I just would reiterate, this court has found it's a very rare case.

[00:29:25] Speaker 01:
where secondary considerations of non-obviousness are sufficient to outweigh evidence of obviousness.

[00:29:31] Speaker 01:
And this simply is not that case.

[00:29:33] Speaker 01:
We have no evidence of a nexus between anything unique about the claim designs and any commercial success or copying.

[00:29:41] Speaker 01:
And we have not just a strong, but I would argue a compelling case of obviousness based on the similarities to Lynn's, which this court already has found as a matter of fact.

[00:29:50] Speaker 01:
So we would urge this court to

[00:29:52] Speaker 01:
overrule and to reverse the board's finding of non-obviousness and enter judgment of obviousness.

[00:30:03] Speaker 01:
Okay.

[00:30:04] Speaker 03:
I thank both counsels.

[00:30:05] Speaker 03:
This case is taken under submission and this ends our proceedings for today.

[00:30:09] Speaker 04:
Thank you.

[00:30:10] Speaker 03:
Thank you, Your Honor.

[00:30:12] Speaker 00:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.