[00:00:00] Speaker 03:
We'll hear argument next in number 20-1448, Coconut Inc.

[00:00:05] Speaker 03:
versus VF Outdoor LLC.

[00:00:07] Speaker 03:
Mr. Jack.

[00:00:10] Speaker 02:
Yes, Your Honor.

[00:00:11] Speaker 02:
May it please the court.

[00:00:13] Speaker 02:
The board's final written decision below should be reversed for a number of reasons.

[00:00:18] Speaker 02:
First, the board improperly construed the terms active particles, first thickness, and second thickness.

[00:00:23] Speaker 02:
And the board's determinations of anticipation by the Dutta and Haley references

[00:00:28] Speaker 02:
were predicated on those flawed plane constructions.

[00:00:32] Speaker 02:
Moving forward to the term active particles, which is critical to a number of issues in this case, the broadest reasonable construction of active particles is particles that adsorb or trap substances on their surface.

[00:00:46] Speaker 02:
This construction is supported by the weight of the intrinsic record, which makes clear that active particles are surface active, adsorbent with a D, particles.

[00:00:56] Speaker 02:
However,

[00:00:58] Speaker 02:
The board's construction is unreasonably broad in this case and encompasses virtually any particle in any reaction type.

[00:01:06] Speaker 02:
The board confirmed as much on page nine of the final written decision, that is appendix page nine, where it stated that active particles encompass, and I quote, a variety of different mechanisms and are not merely particles that adsorb or trap substances on their surface.

[00:01:22] Speaker 02:
The board's construction for active particles is incorrect for a number of reasons.

[00:01:28] Speaker 02:
First, the board committed legal errors by the turning of the inventor, Dr. Hadquist, acted as his own lexicographer for active particles.

[00:01:38] Speaker 02:
The board did not perform the proper analysis.

[00:01:41] Speaker 02:
It did not identify the ordinary meaning of active particles or did not explain how the inventor was using that term, excuse me, in a way that was different from its ordinary meaning.

[00:01:51] Speaker 02:
Also, the board did not identify language of definitional intent.

[00:01:55] Speaker 02:
The inventor, Dr. Hackwis, did not define active particles in the specification with reasonable clarity, deliverance, and precision as is required.

[00:02:06] Speaker 02:
But perhaps more importantly, the board's alleged definitional phrase for active particles omits critical language from the sentence chosen in the specification.

[00:02:17] Speaker 02:
The board chose its definition, a sentence from column four, starting at line six,

[00:02:24] Speaker 02:
in the patent, that's appendix page 65.

[00:02:28] Speaker 02:
But in its alleged definition, it omitted the first two critical words of the phrase.

[00:02:34] Speaker 02:
And those words were surface active.

[00:02:37] Speaker 02:
This entire patent is about surface active particles.

[00:02:42] Speaker 02:
It is about the surface process of adsorption with a deep.

[00:02:50] Speaker 02:
So even assuming, for purposes of argument,

[00:02:53] Speaker 02:
that Dr. Hackwist had, in fact, sought to define the term active particles in the specification, the board can't pick part of that definition as the inventor's definition of that term.

[00:03:08] Speaker 02:
Emitting the phrase surface active is a clear reversible error, even assuming, again, that he was trying to define the term in the specification.

[00:03:19] Speaker 02:
To the extent that this body determines that

[00:03:22] Speaker 02:
inventor was actually defining that term, I would submit that the definition at least has to correspond to what the inventor actually said.

[00:03:32] Speaker 02:
What the inventor actually said is that active particles are surface active particles.

[00:03:39] Speaker 02:
Not just any particles, but surface active.

[00:03:44] Speaker 02:
And the board's definition is also disconnected from the weight of the evidence in this case, which repeatedly makes clear

[00:03:52] Speaker 02:
that in this patent and the rest of the records, active particles are surface active particles.

[00:03:58] Speaker 02:
They work by the surface active process of adsorption.

[00:04:02] Speaker 00:
Council, this is Judge Moore.

[00:04:04] Speaker 00:
You are hinging a lot on the column four inclusion of the word surface before the word active particles to limit it to adsorption or trapping because those things occur at the surface.

[00:04:19] Speaker 00:
Is that right?

[00:04:21] Speaker 02:
That is correct, Your Honor.

[00:04:22] Speaker 00:
And you want to exclude absorption, because that doesn't include at the surface, right?

[00:04:27] Speaker 00:
AB as opposed to AB.

[00:04:29] Speaker 00:
Is that right?

[00:04:30] Speaker 02:
Correct.

[00:04:31] Speaker 02:
That is correct.

[00:04:31] Speaker 02:
And it's very confusing when you're writing and speaking about it.

[00:04:34] Speaker 02:
But yes, you're correct.

[00:04:36] Speaker 02:
Active particles.

[00:04:37] Speaker 00:
One concern I have, though, counsel, is that the claims at issue don't talk about surface active particles.

[00:04:45] Speaker 00:
They talk about active particles.

[00:04:47] Speaker 00:
And active particles would include absorption as well as absorption.

[00:04:55] Speaker 02:
That's a great question, Your Honor.

[00:04:56] Speaker 02:
If you look starting in column four, line four, where the paragraph starts, and I'll quote, the specification says,

[00:05:04] Speaker 02:
These particles may provide such properties because they are active.

[00:05:09] Speaker 02:
That is, the surface of these particles may be active," end quote.

[00:05:15] Speaker 02:
So I would submit, Your Honor, respectfully that active in the context of this patent means surface active.

[00:05:24] Speaker 02:
That also directs your attention.

[00:05:26] Speaker 00:
But this patent, and in fact many claims within it, even cover materials like baking soda and silica, which are absorbing as opposed to adsorbing materials.

[00:05:42] Speaker 00:
Is that right?

[00:05:42] Speaker 02:
I know, Your Honor.

[00:05:45] Speaker 02:
Respectfully, as we explained in our papers and our expert testimony cited therein, a person of ordinary skill in the art would understand

[00:05:53] Speaker 02:
that when it references these compounds that, for example, silica, that they would be activated in this patent, that they would be active versions of those compounds.

[00:06:05] Speaker 02:
And we cite to extrinsic evidence Rosado's definition, excuse me, dictionary, I believe, which is consistent with our expert testimony that active in this context means activation.

[00:06:17] Speaker 02:
It means processing a substance.

[00:06:20] Speaker 02:
with heat and other chemicals to generate the high porosity needed.

[00:06:24] Speaker 02:
So for example, carbon is the perfect example, Your Honor.

[00:06:27] Speaker 02:
Just plain carbon is not an active particle.

[00:06:30] Speaker 02:
It has to be processed.

[00:06:31] Speaker 02:
It has to be activated.

[00:06:33] Speaker 02:
And so we submit, Your Honor, that in this patent, because it's infused with a discussion of surface action, of porosity, of adsorption, that the active particles here have to be processed, have to be made active.

[00:06:48] Speaker 02:
And so to answer your question, Your Honor, when it recites some of these other compounds, a person of ordinary skill would understand that that's referring to an activated version of that compound.

[00:06:58] Speaker 00:
But didn't, I'm sorry, but didn't the board have in front of it the Daniels Declaration, which admitted that the silica can act through absorption?

[00:07:11] Speaker 00:
And you know, I mean, our standard of review here is substantial evidence for something like this, because we're now outside of the intrinsic record.

[00:07:18] Speaker 00:
And so doesn't that matter?

[00:07:24] Speaker 02:
If I recall, Your Honor, I think one of our experts, I think it may have been Daniels, stated that, for example, when you're talking about silica gel in this patent, it would have to be an activated version to be a surface active particle.

[00:07:39] Speaker 02:
But I think, Your Honor, you're talking about a question of fact.

[00:07:44] Speaker 02:
I think the underlying issue here is that the claim construction of active particles is incorrect.

[00:07:50] Speaker 02:
And so at a minimum,

[00:07:52] Speaker 02:
the decision should be remanded if not reversed so that the board can apply the appropriate definition of active particles to the record evidence.

[00:08:04] Speaker 03:
Okay, you're going to save your rebuttal time?

[00:08:09] Speaker 02:
Yes, your honor.

[00:08:10] Speaker 02:
Unless there are any further questions, I'll save the remainder of my time for rebuttal.

[00:08:13] Speaker 02:
Thank you.

[00:08:15] Speaker 03:
Okay, Mr. Gurgley.

[00:08:20] Speaker 01:
May it please the court, Peter Gurgley for VF Outdoor LLC.

[00:08:26] Speaker 01:
Your Honor, these inventions have been known in the prior art for years, at least 10 years before the patent suit was applied for.

[00:08:35] Speaker 01:
Not surprisingly, the technology was invented by inventors of W. L. Gore and disclosed in the data in Haley references.

[00:08:43] Speaker 01:
Kokona seeks to avoid these prior art references by seeking overly narrow glane constructions of active particles, first thickness and second thickness.

[00:08:53] Speaker 01:
Regarding active particles, Kokona seeks to modify the term with the word surface, which appears in the specification, but the specification is not so narrow.

[00:09:02] Speaker 00:
It describes active particles as those that adsorb... Council, is it your view though that if the claim said surface active as opposed to just active particles, if it said surface active particles, then it would have been reasonable for the board to have limited it to adsorption or trapping substances at that point?

[00:09:23] Speaker 01:
It's hard for me to predict what the board would have done in that case because that wasn't the issue in front of them, but I would agree with you that the argument may hold more weight if the claim term was actually surface active particles, but it wasn't.

[00:09:40] Speaker 01:
It was broader.

[00:09:40] Speaker 01:
It was active particles.

[00:09:43] Speaker 01:
And I would also note that the passage that council relies on in column four, line four,

[00:09:50] Speaker 01:
It says the surface of these particles may be active.

[00:09:55] Speaker 01:
So it doesn't require the surface to be active.

[00:09:57] Speaker 01:
It just says they may be active.

[00:10:00] Speaker 01:
Have I answered your question?

[00:10:04] Speaker 01:
Sure.

[00:10:06] Speaker 01:
And again, the issue here is what is the broadest reasonable interpretation in light of the specification?

[00:10:15] Speaker 01:
And the specification describes active particles in terms of their functional properties, which includes moisture management, UV protection, and chemical protection.

[00:10:25] Speaker 01:
It also describes active particles as having a number of mechanisms of action, including odor absorption and light absorption.

[00:10:33] Speaker 01:
And Your Honor, you did note that certain absorbing particles were disclosed in the specifications, such as baking soda and silica gel.

[00:10:44] Speaker 01:
And there was a key admission from Kokona's expert, Mr. Daniels, or Dr. Daniels, where he opines that silica gel, which is defined as an active particle in the specification, can in fact absorb water.

[00:11:00] Speaker 01:
So the definition and the specification with respect to active particles is not so narrow as Kokona would advance.

[00:11:14] Speaker 03:
Could we turn to your cross appeal on claims 38 and 39?

[00:11:19] Speaker 03:
Yes.

[00:11:24] Speaker 03:
Is your theory here that by incorporating claim 27 that this MTBR measurement should be taken after the de-encapsulating, is that what your theory is?

[00:11:41] Speaker 01:
Yes.

[00:11:42] Speaker 01:
And I think that's a fair reading.

[00:11:44] Speaker 01:
of claims 38 and 39, which really speak, they speak to encapsulated particles, and when these particles are encapsulated, they are in a deactivated state.

[00:11:58] Speaker 01:
So by definition, they're not gonna have the MDTR enhancing properties.

[00:12:06] Speaker 01:
It's only when that is removed that

[00:12:10] Speaker 01:
that an improvement in MVTR occurs.

[00:12:13] Speaker 01:
That just, that's it.

[00:12:15] Speaker 03:
But claims 38 and 39 don't require the complete removal of the encapsulation, but only the removal of some encapsulations.

[00:12:27] Speaker 03:
So if that's true, how does the record then show that Haley establishes that that limitation is satisfied in the combination?

[00:12:41] Speaker 01:
Well, in Haley, it actually shows that the MVTR limitation is met when there are no active particles present whatsoever.

[00:13:03] Speaker 01:
So a person of ordinary skill in the art

[00:13:08] Speaker 01:
would reasonably assume, would have a reasonable expectation of success, that when you add active particles to Haley or Dutta, and they are unencapsulated, you would get an improvement.

[00:13:24] Speaker 03:
How does Haley know that the limitation would be met if there are no active particles?

[00:13:34] Speaker 01:
Your Honor, if you actually look at the table

[00:13:37] Speaker 01:
in Haley, if you just give me a moment.

[00:13:43] Speaker 01:
I believe we excerpted in our brief.

[00:13:50] Speaker 03:
Is this at 759, is that what it is?

[00:13:54] Speaker 01:
I'm sorry, I'm not following 759.

[00:13:56] Speaker 01:
Oh, actually I'm looking at page four of our brief, yes, 759.

[00:14:05] Speaker 01:
And if you look at the control,

[00:14:08] Speaker 01:
The control has no active particles present.

[00:14:12] Speaker 01:
So there, the MVTR is 6344 grams per meter squared per day.

[00:14:18] Speaker 01:
So that actually has a material that already meets the claimed MVTR limitation.

[00:14:25] Speaker 01:
So the argument would be when you put unencapsulated particles in combination with that material, you're going to get an improvement.

[00:14:39] Speaker 03:
But don't the claims suggest that the active particles have to meet the MTVR limitations?

[00:14:51] Speaker 01:
I'm sorry, Your Honor.

[00:14:52] Speaker 01:
I didn't hear that part.

[00:14:55] Speaker 03:
Don't claims 38 and 39 suggest that the active particles have to meet the MTVR limitations?

[00:15:04] Speaker 01:
Right.

[00:15:04] Speaker 01:
And that, for example, like we were looking at, um, appendix 759, which is excerpted on page four of our brief.

[00:15:12] Speaker 01:
If you look at examples one, two, and three, that shows the improvement.

[00:15:19] Speaker 01:
And in, in, uh, in that particular example, those are unencapsulated particles.

[00:15:26] Speaker 01:
The seven, seven, three, six, seven, seven, three, six, and the six, nine, two, four are all within range and they're all an improvement over control.

[00:15:34] Speaker 03:
I thought you said those weren't active particles, am I misunderstanding?

[00:15:41] Speaker 01:
Yes.

[00:15:42] Speaker 01:
The control has no active particles in it, and that shows that the MVTR range is already met.

[00:15:53] Speaker 01:
In examples 1, 2, and 3, those are the test cases where the active

[00:15:58] Speaker 01:
particles are added.

[00:16:00] Speaker 01:
And in this case, that's the black pearls.

[00:16:02] Speaker 01:
And that shows an improvement over control from 6344 up to 7736 twice, and then once to 6924.

[00:16:11] Speaker 01:
So there's an improvement.

[00:16:13] Speaker 01:
And it's also within the claim range.

[00:16:15] Speaker 01:
And those are unencapsulated particles.

[00:16:18] Speaker 03:
OK, I understand what you're saying.

[00:16:20] Speaker 03:
But I'm not understanding how you can rely on the control.

[00:16:25] Speaker 03:
to satisfy this claim limitation when the claims seem to require that the active particle satisfy the claim limitation?

[00:16:35] Speaker 01:
Right.

[00:16:35] Speaker 01:
And so the argument we are advancing is that if you encapsulate these particles and then remove the encapsulant, you would get what's shown

[00:16:54] Speaker 01:
in the test cases one two and three or a person of ordinary skill than they are would would reasonably expect that you're right when you're when you're come when you're combining had quits with your family or data but your problem is that the claims only require the removal of of the impactful not all right her correct and

[00:17:24] Speaker 01:
I think that's open ended.

[00:17:26] Speaker 01:
It could be some and it could be all.

[00:17:40] Speaker 03:
Okay, go ahead.

[00:17:44] Speaker 01:
So the issue we have with the board's construction with respect to 38 and 39 is

[00:17:53] Speaker 01:
They said that there's no evidence of how these claim limitations would be met when the particles are encapsulated.

[00:18:01] Speaker 01:
But that's not what claims 38 and 39 are directed to.

[00:18:05] Speaker 01:
They are directed to particles that are encapsulated.

[00:18:10] Speaker 01:
And they have the capability to meet that MVTR limitation when the removable encapsulant is removed.

[00:18:22] Speaker 01:
to reactivate at least a portion of the active particles.

[00:18:27] Speaker 01:
So it really speaks to future actions.

[00:18:30] Speaker 01:
These particles are in fact encapsulated, but the measurement is not done until that encapsulant is removed.

[00:18:38] Speaker 01:
So what you're measuring is unencapsulated particles.

[00:18:41] Speaker 01:
And that's where I think the board got it wrong, is that they were suggesting that the particles actually had to be encapsulated

[00:18:51] Speaker 01:
in order to achieve this MVTR limitation.

[00:18:54] Speaker 01:
And that's just inconsistent with the specification.

[00:19:02] Speaker 03:
Okay.

[00:19:02] Speaker 03:
Do you want to say your rebuttal, Tom?

[00:19:05] Speaker 01:
I will.

[00:19:05] Speaker 01:
Thank you, Your Honor.

[00:19:06] Speaker 03:
Okay.

[00:19:08] Speaker 03:
Mr. Jackson?

[00:19:11] Speaker 02:
Yes, Your Honor.

[00:19:12] Speaker 02:
I would like to briefly address VS cross-appeal arguments that we were just discussing.

[00:19:19] Speaker 02:
The board correctly determined that claims 38 and 39 are not obvious over two combinations, Dutta and Hagquist and Haley and Hagquist.

[00:19:28] Speaker 02:
And the board correctly pointed out both in the final written decision and in its decision denying the rehearing request at appendix 653 and 654 correctly pointed out that petitioner VF did not show

[00:19:46] Speaker 02:
that the NVTR of underlying claim 27 was ever met.

[00:19:54] Speaker 02:
And claim 27 is the independent.

[00:19:56] Speaker 03:
And would it be met if you had removed all the encapsulant and made the measurement after that removal?

[00:20:07] Speaker 02:
I don't think there is evidence in the record to show that, Your Honor, because what they failed to show and what the board identified

[00:20:15] Speaker 02:
in its papers and during the hearing was that there's simply not evidence in the record showing that the combination would result in the claimed branch.

[00:20:26] Speaker 02:
I understand why the petitioner is focusing on the tables in Haley, but that's not the end of the inquiry.

[00:20:31] Speaker 02:
The correct question is, what is the NPTR when the HACWIST particles are substituted into Haley?

[00:20:40] Speaker 02:
The HACWIST particles are different than Haley's particles.

[00:20:44] Speaker 02:
And there's simply no evidence showing how that works.

[00:20:47] Speaker 02:
There's no evidence showing that the MVTR of claim 27 is met.

[00:20:52] Speaker 02:
And there's no evidence showing what happens when those particles are further encapsulated and then rejuvenated.

[00:20:59] Speaker 03:
Okay, anything further?

[00:21:13] Speaker 02:
Let me see.

[00:21:18] Speaker 02:
Yes, Your Honor, one quick point.

[00:21:19] Speaker 02:
I did want to circle back and agree with some of the comments I believe you were making earlier.

[00:21:27] Speaker 02:
The active particles in Claim 27 have to contribute to the moisture vapor transmission rate.

[00:21:35] Speaker 02:
It's not just the rate of a sheet or layer of plastic or other material, but the active particles.

[00:21:43] Speaker 02:
and their surface activity is responsible for the improved MPTR.

[00:21:51] Speaker 02:
And with that, Your Honor, we will rest our case today.

[00:21:56] Speaker 02:
Thank you.

[00:21:59] Speaker 03:
Okay.

[00:21:59] Speaker 03:
Mr. Jackson, Mitchell Gurgley, you have a couple of minutes.

[00:22:04] Speaker 01:
Yes, Your Honor, I'd like to focus on claims 38 and 39 in our cross appeal.

[00:22:10] Speaker 01:
Council said that our argument was that the HAGQUIST particles had to be substituted into HALI or DOTA.

[00:22:19] Speaker 01:
That's not the argument we're making on appeal.

[00:22:22] Speaker 01:
We're arguing that the encapsulants of HAGQUIST would be used with either HALI or DOTA.

[00:22:29] Speaker 01:
So that's different.

[00:22:30] Speaker 01:
It's not a wholesale swapping out of particles.

[00:22:34] Speaker 01:
It's just simply that the encapsulants would be used and then removed.

[00:22:39] Speaker 01:
And then with respect to this issue of removing a portion of the encapsulant, excuse me, where at least a portion of the active particles would be improved, it says at least a portion.

[00:22:57] Speaker 01:
So I read that as meaning it can be at least a portion or it could be the entire portion of the particles.

[00:23:06] Speaker 01:
could be reactivated to improve the composition.

[00:23:12] Speaker 01:
The issue we have with the board's ruling on these claims is that it was an improper claim construction.

[00:23:21] Speaker 01:
They required that encapsulant to be present at all times, including the measurement

[00:23:31] Speaker 01:
of the MVTR, and we think that's just incorrect based on the specification.

[00:23:36] Speaker 01:
This claim and the specification speak to encapsulated particles that would have the ability to improve MVTR upon removal of the encapsulant.

[00:23:50] Speaker 01:
So it speaks to particles that have that capability.

[00:23:57] Speaker 01:
The measurement is not done when the particles are encapsulated.

[00:24:01] Speaker 01:
the measurement is done when that encapsulant is removed.

[00:24:05] Speaker 01:
And unless your honor has any questions, we would rest.

[00:24:12] Speaker 03:
Okay.

[00:24:13] Speaker 03:
Thank you, Mr. Gertley.

[00:24:14] Speaker 03:
Thank you, Mr. Jackson.

[00:24:15] Speaker 03:
The case is submitted.

[00:24:17] Speaker 03:
Thank you.