[00:00:12] Speaker 02:
I'd like to first turn to the 1118 appeal and the proper construction of plate-like, and I'd like to briefly address two points.

[00:00:22] Speaker 02:
First, the board committed reversible legal error by initially construing plate-like to mean generally flat, but later using construction, a different construction when it considered the prior art.

[00:00:36] Speaker 02:
Second, even if the court were to find no claim construction error, reversal is still warranted because there is no substantial evidence supporting the board's determination.

[00:00:46] Speaker 01:
Can I ask you just a housekeeping question, which is

[00:00:50] Speaker 01:
This is the 532 patent, right?

[00:00:53] Speaker 01:
It is.

[00:00:54] Speaker 01:
If we were to hypothetically agree with you on the claimed construction point, is there more work to be done by the board, or does that end the case?

[00:01:05] Speaker 02:
Thank you for asking.

[00:01:06] Speaker 02:
I believe there is additional work that would need to be done.

[00:01:09] Speaker 01:
This is in terms of actually determining the additional work.

[00:01:16] Speaker 01:
Let me ask you then moving on on the merits of that question.

[00:01:21] Speaker 01:
I got a lot of paper here and there are a lot of words.

[00:01:25] Speaker 01:
What was the patent owner's construction?

[00:01:27] Speaker 01:
I mean the board didn't

[00:01:29] Speaker 01:
I mean, it's very confusing.

[00:01:31] Speaker 01:
And we get a lot of cases under O2 Micro or parties complaining that the board changed its construction and applying it, whatever.

[00:01:39] Speaker 01:
But I was trying to compare your construction, what the board did, and then what the patent owner was arguing for.

[00:01:48] Speaker 01:
It's a little ambiguous today.

[00:01:49] Speaker 01:
Sure.

[00:01:50] Speaker 01:
Let me see if I can give you a little background.

[00:01:52] Speaker 02:
The patent owner's construction was a flat, broad interface to adjacent

[00:01:58] Speaker 02:
bone portions.

[00:02:00] Speaker 02:
And there was a debate during trial as to whether or not either party's constructions were confined to a surface or a three-dimensional object.

[00:02:11] Speaker 02:
And the debate was had.

[00:02:13] Speaker 02:
And ultimately, the board rejected the patent owner's claim construction, finding that it was limited to a surface.

[00:02:21] Speaker 02:
and adopted.

[00:02:22] Speaker 01:
But it seemed like, and I'll ask the Patton Hooters Council to explain it too, it seemed like even under their construction that would

[00:02:29] Speaker 01:
be consistent with yours in terms of looking at the flat surface simply at the ability to, I think they use these words, the ability to interface at the top and at the bottom, which I thought was kind of along the same lines as you had for the horizontal stuff.

[00:02:48] Speaker 02:
The horizontal orientation.

[00:02:50] Speaker 02:
And that's a very good question, Your Honor.

[00:02:52] Speaker 02:
I think the key is that when you look at the pattern of construction, it refers to one interface, not two.

[00:02:59] Speaker 02:
And so it's a flat, broad interface, a singular interface.

[00:03:04] Speaker 02:
And that's what the board said.

[00:03:05] Speaker 02:
It seems to be confined to a surface.

[00:03:07] Speaker 02:
And that's why they rejected it.

[00:03:09] Speaker 02:
That's why we interpret they rejected it.

[00:03:13] Speaker 01:
Yeah.

[00:03:13] Speaker 01:
Just one quick question, just so time doesn't run out.

[00:03:16] Speaker 01:
I understand.

[00:03:18] Speaker 01:
A major portion of your argument involves claim four.

[00:03:21] Speaker 01:
Are there any figures you could, there are a lot of figures in this patent.

[00:03:24] Speaker 01:
Are there any figures that you want to call out in support of your construction?

[00:03:32] Speaker 02:
Yes, Your Honor.

[00:03:34] Speaker 02:
I mean, in support of my construction.

[00:03:37] Speaker 02:
Well, I think, and the board found that our construction was supported by the figures.

[00:03:45] Speaker 02:
They are generally flat in a horizontal orientation, which is the orientation of implant for these spinal implants.

[00:03:52] Speaker 02:
And then the board, when it came to looking at the prior art, Your Honor, focused on, when considering the Grooms and Paul prior art references, looked at

[00:04:07] Speaker 02:
curves in legs in the vertical orientation said, well, that takes it outside the scope of plate-like.

[00:04:15] Speaker 02:
And so we said, well, that's not correct.

[00:04:19] Speaker 02:
The mere presence of curves can't take a bone portion outside the scope of plate-like.

[00:04:27] Speaker 02:
And we know that because claim four, the claim that Your Honor referenced,

[00:04:32] Speaker 02:
recites a series of graphed shapes.

[00:04:34] Speaker 01:
I take your argument.

[00:04:36] Speaker 01:
Can we move on to the second patent?

[00:04:38] Speaker 01:
The 158?

[00:04:38] Speaker 01:
Yeah, if that's okay with my colleagues.

[00:04:43] Speaker 01:
I'm construing your argument kind of two pieces.

[00:04:47] Speaker 01:
The first piece being Walter and the

[00:04:50] Speaker 01:
The the if one graph versus the other and then the second one seems to be the screw versus the pin And I must tell you candidly so you can help me out here.

[00:05:01] Speaker 01:
I'm having a hard time on the second portion I take your arguments on the first portion and the board's Analysis, but on the second portion it seems to me like based on a substantial evidence review How can there not be substantial evidence to support the construction that the two were really different and there was not a reasonable expectation?

[00:05:20] Speaker 01:
of success that you could use the screw, that the pin would work as easily as the screw did in this context?

[00:05:30] Speaker 02:
Well, taking up the issue of substantial evidence,

[00:05:37] Speaker 02:
on the bone pin.

[00:05:38] Speaker 02:
You are correct, Your Honor.

[00:05:39] Speaker 02:
We must prevail on both issues.

[00:05:42] Speaker 02:
So focusing on the bone pin, I think one of the biggest problems there is there is not substantial evidence supporting the idea that there was no reasonable expectation of success because the evidence on which the board focused was the wrong person at the wrong place.

[00:06:02] Speaker 02:
And what I mean by that is this.

[00:06:05] Speaker 02:
When it came to evaluating, we're looking at the fact evidence.

[00:06:10] Speaker 02:
The testimony of LifeNet's fact witness, Mr. Gaskins, was limited to his personal experience.

[00:06:16] Speaker 02:
And he did not testify from the perspective of a personal, ordinary skill.

[00:06:20] Speaker 02:
and their reasonable expectation of success in using a bone pin either as described in the Grooms or Paul references, or in the prior art summarized in the patent itself, with an iliac crest.

[00:06:33] Speaker 02:
And that's summarized in appendix 4763 through 4781 in our reply brief at page 52.

[00:06:40] Speaker 02:
So he was the wrong person.

[00:06:42] Speaker 02:
He never testified from the perspective of person of skill.

[00:06:45] Speaker 02:
So there's lacking of evidence there.

[00:06:48] Speaker 02:
And then secondly,

[00:06:51] Speaker 02:
I mentioned that the board focused on the wrong place.

[00:06:54] Speaker 02:
The testimony of LifeNet's surgeon expert, Dr. Shaffrey, was confined to making graphs in the operating room and not making graphs in advance of surgery in the lab, which is how allografts are made.

[00:07:09] Speaker 02:
They're made in advance.

[00:07:11] Speaker 02:
And what you do is you're going to have a bone pin.

[00:07:15] Speaker 02:
harvest it from the cadaver and you harvest the iliac crest or some other bone from the cadaver and you assemble it in a lab well in advance of surgery.

[00:07:23] Speaker 02:
You don't have the concerns of the time pressures and that type of thing in surgery.

[00:07:30] Speaker 02:
mentioned at pages 66 and 68 of our brief and also 49 through 50 of our reply brief.

[00:07:37] Speaker 02:
And so I don't feel that there is substantial evidence supporting the board's determination.

[00:07:43] Speaker 01:
We also addressed that there were... Well, except, I mean, the board did analyze, and I'm looking at, maybe I'm looking at the wrong thing, 30, appendix 30 through 32.

[00:07:51] Speaker 01:
I do, you know, again, it's substantial evidence review.

[00:07:54] Speaker 01:
There were several experts, and ultimately the board was crediting one expert over the other.

[00:08:00] Speaker 01:
And I thought, I mean, the board is saying at A32 that they're crediting Dr. Shaffrey, and they are talking about an alacraft foam, which is outside, right?

[00:08:15] Speaker 01:
And I guess I'm, you know, if you want to look at the testimony and tell me where we can find error... Appendix A32, Your Honor?

[00:08:23] Speaker 01:
I'm looking at, well, the analysis on this issue is 30 through 33.

[00:08:28] Speaker 01:
And the board cites a lot of competing testimony by the witnesses and credits what one witness says over another.

[00:08:37] Speaker 01:
And if your only answer to Dr. Shaffrey was, well, he wasn't testifying as a person skilled in the art, I don't know how we do that.

[00:08:45] Speaker 01:
No, no.

[00:08:45] Speaker 02:
I want to be clear.

[00:08:46] Speaker 02:
I want to be clear.

[00:08:47] Speaker 02:
Dr. Shaffrey was testifying his.

[00:08:50] Speaker 02:
The testimony, if you look at his defamation, we summarize it in our reply brief.

[00:08:53] Speaker 02:
We lay it out for the court.

[00:08:55] Speaker 02:
He's testifying about what's happening if a surgeon is trying to make that graft on the fly in the operating room.

[00:09:04] Speaker 02:
And that's not what we argued.

[00:09:06] Speaker 02:
What we argued was that it would be made in advance out of allogeneic bone.

[00:09:13] Speaker 02:
It was Mr. Gaskins who we said did not testify as a person of skill in the art.

[00:09:20] Speaker 02:
He was a fact witness who testified about his own personal experience at LifeNet making bone pins.

[00:09:26] Speaker 02:
And his testimony was confined to his personal experience and the difficulties he had, but he never testified as to what a person of skill's reasonable expectations of success would be, given the teachings in the art, the admissions in the patent about no undue experimentation for foam pins.

[00:09:47] Speaker 04:
Let me ask you just to bounce back for a second to the 532 pattern.

[00:09:56] Speaker 04:
Does it make much difference to you in terms of assessing your argument, whether one looks at it as an error of claim construction or the correct claim construction but a misapplication of that construction?

[00:10:10] Speaker 02:
Your Honor, I noticed, by the way, I made it to my rebuttal time.

[00:10:14] Speaker 02:
I said, OK, if I answer your question.

[00:10:16] Speaker 02:
Oh, yes, sir.

[00:10:17] Speaker 02:
OK.

[00:10:17] Speaker 02:
I'm sure it would be.

[00:10:18] Speaker 02:
So does it make any difference?

[00:10:23] Speaker 02:
I don't think so, because first, I mean, it's two sides of the same coin.

[00:10:33] Speaker 02:
The board said generally flat and nothing else.

[00:10:37] Speaker 02:
And so even under the substantial evidence,

[00:10:40] Speaker 02:
It was undisputed that the Grooms and Paul references were generally flat in the horizontal plane, so you can get it that way.

[00:10:50] Speaker 02:
As to what the construction that the court applied, the construction that it applied was inconsistent with the evidence.

[00:10:58] Speaker 02:
And specifically, I mentioned the claim, claim forward.

[00:11:01] Speaker 01:
Well, it matters because it matters.

[00:11:02] Speaker 01:
It affects the standard of review.

[00:11:04] Speaker 01:
It does.

[00:11:05] Speaker 01:
So is it your view?

[00:11:06] Speaker 01:
I mean, I really haven't thought through the answer to this question.

[00:11:10] Speaker 01:
Obviously, we all know de novo review applies to claim construction.

[00:11:14] Speaker 01:
In terms of the application of the claim construction,

[00:11:18] Speaker 01:
Is that de novo review because we're still talking about claim construction or is there substantial evidence review to that question?

[00:11:25] Speaker 02:
Well, that's a very good question.

[00:11:27] Speaker 02:
I want to be clear and we did cite the Corning and Vitamix cases which talked about the difference between the effective construction

[00:11:36] Speaker 02:
and what was construed earlier.

[00:11:38] Speaker 02:
The original construction and what was actually applied.

[00:11:41] Speaker 02:
In that case, I do believe that the court is entitled to review it de novo and say, no, you got it wrong.

[00:11:47] Speaker 02:
When it came time to applying the construction of the prior art, you used a different construction, and we get to review that de novo.

[00:11:53] Speaker 02:
But as to the actual application in the end, of course, that is a fact-finding.

[00:12:04] Speaker 03:
the other side and we'll see if you rebuttal and cross the field time thank you good morning your honors may please the court the board agreed with surge align the plate like should mean generally flat

[00:12:32] Speaker 00:
The board then applies that same construction to the prior art, exactly how Sir Jeline said to apply it.

[00:12:38] Speaker 01:
So what was another way of saying what the, isn't another way of saying the construction of the board ultimately applied said generally flat means it has to be flat in the horizontal and the vertical?

[00:12:52] Speaker 01:
Is that a fair application of the construction?

[00:12:56] Speaker 00:
Sergeline is the one who proposed the construction.

[00:12:59] Speaker 00:
And what Sergeline told the board.

[00:13:01] Speaker 01:
No, I want to know what you think.

[00:13:02] Speaker 01:
I'm sorry to interrupt, but I want to know what you think the board was saying.

[00:13:06] Speaker 01:
When they were giving further definition to generally flat, what were they saying with respect to vertical and horizontal?

[00:13:16] Speaker 01:
The board wasn't giving further definition to generally flat the board was applying the proposed construction from surge line that generally flat must be evaluated when looking at the overall shape of the bone portion and another okay, so let's talk about what does that mean what does that mean it has to be Looking at the overall Meaning that it had both the vertical and the horizontal planes have to be flat is that

[00:13:44] Speaker 01:
Is that the way you construct the claim construction and the board construed it?

[00:13:49] Speaker 01:
Is that fair?

[00:13:50] Speaker 00:
Your Honour, the way that we understand the board's construction and application of it is the same way that Surge Align proposed it be done at Appendix 2234-35 for an oral argument.

[00:14:01] Speaker 00:
that you don't just look at one place or one area or one side of the cortical bone piece to see whether it's generally flat.

[00:14:11] Speaker 00:
You have to look at all aspects of it, all sides of it.

[00:14:14] Speaker 00:
And of course the construction isn't flat.

[00:14:16] Speaker 00:
The construction is generally flat.

[00:14:18] Speaker 00:
So you have to have some, of course, wiggle room there, so to speak.

[00:14:24] Speaker 00:
And so if the bone pieces, when looked at from all aspects, on balance are generally flat, then they are generally flat.

[00:14:32] Speaker 01:
How does that coincide with claim four?

[00:14:35] Speaker 00:
Claim four relates to the overall structure of the composite bone graft, which is made up of three plate-like bone portions.

[00:14:44] Speaker 00:
And we know from the specification and from the figures and from claim four that, of course,

[00:14:50] Speaker 00:
plate-like can allow some curvature.

[00:14:53] Speaker 00:
For example, on the embodiments that have a cylindrical disc as a plate-like cortical bone portion, we know that that can allow some curvature because the cylindrical disc is like a plate.

[00:15:07] Speaker 00:
It is generally flat.

[00:15:08] Speaker 00:
Or in the flattened curved wedge, for example,

[00:15:11] Speaker 00:
that the two outer cortical bone portions can have curvature on their outsides.

[00:15:16] Speaker 00:
And as we proposed, a flat, broad interface to the adjacent and interior cancels bone portion, or under the board's construction, that it is still generally flat.

[00:15:26] Speaker 00:
Because on balance, the bone portion, when looked at from all aspects, as Surge-Align proposed the board to do, and as the board said it did, at appendix 139 for grooms and 144 for pall,

[00:15:39] Speaker 00:
it looks at the overall shape of the bone portion, not merely whether they include a region that is generally flat.

[00:15:45] Speaker 04:
Mr. Gould, there's one question I have, I've been scratching my head a little bit about.

[00:15:50] Speaker 04:
The construction was generally flat.

[00:15:54] Speaker 04:
What does the word generally in that setting impart in your view?

[00:16:00] Speaker 00:
The word generally, as far as we understand, of course, Sergeline proposed the construction, we proposed something else.

[00:16:07] Speaker 00:
As we understand it, it imparts some flexibility that doesn't require exact flatness.

[00:16:13] Speaker 00:
It doesn't require a plank, for example, which is one of the embodiments discussed in the specification.

[00:16:19] Speaker 00:
So it doesn't require a 2x4.

[00:16:22] Speaker 00:
There does allow some flexibility where a graft can have some curvature, a bone portion can have some curvature and still be considered generally flat because that's what the specification tells us.

[00:16:36] Speaker 00:
Thank you.

[00:16:37] Speaker 00:
Sergio line appeals this issue though, not because the board applied a different construction.

[00:16:42] Speaker 00:
In fact, as we've talked about as appendix 139 to 40 and 144, the board applied the exact construction they adopted and that Sergio line proposed.

[00:16:52] Speaker 00:
And substantial evidence shows that the cryo-art brooms in Paul have significant irregularities that make them not plate-like under any reasonable construction of the term, whether the one the board adopted, whether the one LifeNet proposed, or if the court reaches the de novo issue, which we don't think the court should, something else the court may come up with here.

[00:17:14] Speaker 01:
Walter as judge let me ask you just to finish that up the first question I think I asked your friend was if we agree with his construction Whatever if he prevails on the claim construction dispute He acknowledged that it would still have to be sent back for further review For the ultimate question of obviousness.

[00:17:38] Speaker 01:
I assume you agree with that.

[00:17:39] Speaker 00:
Yes, your honor though I

[00:17:41] Speaker 00:
Though because Surgellite is the one who proposed the construction before the board and prevailed on that issue under the key pharmaceuticals case 161 F3 at 715, that's not actually an issue that's before this court.

[00:17:56] Speaker 00:
What's before this court is a substantial evidence review of a comparison

[00:18:01] Speaker 00:
of the claim language and its construction to the prior art.

[00:18:04] Speaker 00:
And Graham tells us that that is what the comparison is.

[00:18:09] Speaker 00:
That is one of the factual findings underlying obviousness analysis, comparison of the claims to the prior art.

[00:18:17] Speaker 00:
And substantial evidence supports the board's factual finding that neither Grooms nor Paul have plate-like cortical bone portions.

[00:18:26] Speaker 00:
And those figures can be seen on appendix 139.

[00:18:30] Speaker 00:
For Grooms, we have to, of course, consider one of those individual bone portions and whether it's plate-like.

[00:18:36] Speaker 00:
So is 801A shown on appendix 139 on its own plate-like?

[00:18:41] Speaker 00:
The board said it is not.

[00:18:43] Speaker 00:
And the board gives reasons why.

[00:18:45] Speaker 00:
At appendix 139, while it has a generally flat base, and the board did acknowledge that, it has legs for curved portions that extend away from it.

[00:18:55] Speaker 04:
So when the board said it has a generally flat base, I'm looking at figure 8A on page 139, that's what you're referring to.

[00:19:03] Speaker 04:
What was it terming the base?

[00:19:06] Speaker 04:
I mean, in other words, was it talking about this part down here?

[00:19:13] Speaker 04:
In other words, it's facing down towards the figure 8A.

[00:19:18] Speaker 04:
Is that the base right there?

[00:19:21] Speaker 00:
Since the board states that the legs or curved portions extend away from the base,

[00:19:26] Speaker 00:
My understanding of the board's analysis is that the generally flat base would be the side that you can't see on the perspective view on the left.

[00:19:36] Speaker 00:
So what would be the outer portion when inserted into the spine.

[00:19:41] Speaker 00:
And the critical part here is that these legs or curved portions, these irregularities, cause this cortical bone portion not to be plate-like because it creates the canal.

[00:19:51] Speaker 00:
It creates the canal between the two cortical bone portions.

[00:19:55] Speaker 00:
And this makes Grooms and Paul both a ring-like style graft with a ring of cortical bone that surrounds an inner canal of cancellus or spongy bone.

[00:20:07] Speaker 00:
And these mimic a cross section of long bone like a femur from your leg.

[00:20:12] Speaker 04:
So let me ask you though, what is the significance in here?

[00:20:15] Speaker 04:
It appears from looking at that figure that what I'll call the top and the bottom are both flat.

[00:20:22] Speaker 04:
How does that, and I'm talking about the part that's up here, the top of the little C, and also what would be the bottom underneath that we can't see.

[00:20:34] Speaker 04:
Those seem to be flat.

[00:20:36] Speaker 04:
Why does that not support what the board did here?

[00:20:41] Speaker 00:
Your Honor, a non-plate-like or non-generally flat bone portion like these can have flat regions.

[00:20:48] Speaker 00:
Oh, I'm sorry.

[00:20:48] Speaker 04:
Excuse me.

[00:20:49] Speaker 04:
Why does that not support Mr. Hedrick's argument?

[00:20:51] Speaker 04:
It seems to be flat on the top and flat on the bottom.

[00:20:55] Speaker 00:
Granted, it does have flat portions, and the board recognized that it does have flat areas.

[00:21:01] Speaker 00:
But on balance, when you look at 801A from all sides and all angles, as Serge Align told the board to do, it is not generally flat.

[00:21:11] Speaker 00:
And the reason being that because they replicate that cross section of long bone, that's the prior art design that Life Net's patents were trying to get away from.

[00:21:21] Speaker 00:
And as the patents tell us, for example, at appendix 267, column 1, lines 59 to column 2, line 12, these graphs in the prior art often failed because they extruded, they slipped, they were not cellularized, and they failed mechanically.

[00:21:38] Speaker 00:
Leichnitz patents got beyond that design by optimizing the trade-off between strong cortical bone that supports the weight of the spine and the spongy cancellus bone that allows for the in-growth infusion for a successful surgery.

[00:21:53] Speaker 00:
Essentially, this plate-like design allowed for greater stability using less cortical bone to maximize the amount of cancellus bone in the given space of the spinal column.

[00:22:04] Speaker 00:
Dr. Shaffrey testifies at appendix 4737 to 38 that this facilitates a flush fit that promotes mechanical stability and load distribution across the entire graft.

[00:22:16] Speaker 00:
Grooms and Paul are nothing like this.

[00:22:18] Speaker 01:
Can we move to the, unless my colleagues obviously have questions, can we move to the other patent and the question?

[00:22:24] Speaker 01:
I mean, we were discussing with your friend what I found a hard issue in this case, which is the pin versus the metal screw.

[00:22:34] Speaker 01:
And I'm looking at page appendix 32 of the board's opinion.

[00:22:40] Speaker 01:
I think, maybe I don't understand this all correctly, but I think their answer to the fact that there would have been problems with Walter because that was an autograph.

[00:22:51] Speaker 01:
Their response was, well, yeah, but that's because you do it, if you do it outside the body in an allograph, that alleviates most of the concerns that one has expressed and your witnesses professed for doing it inside the body.

[00:23:08] Speaker 01:
And what the board says about that is that, no, what Dr. Shaffrey said was fine, because even though most of his declaration was about autocraft bone, he had a statement at the end that said, everything I said before applies to this as well.

[00:23:23] Speaker 01:
Right?

[00:23:24] Speaker 01:
Yes, Your Honor.

[00:23:25] Speaker 01:
Isn't that a little sketchy, maybe?

[00:23:27] Speaker 01:
I mean, for an expert to testify in detail about one thing, and then at the end, summarily or conclusively say, and yeah, in another circumstance, everything I said applies as well.

[00:23:38] Speaker 01:
Is that a little problematic, even under a substantial evidence review?

[00:23:42] Speaker 00:
No, Your Honor, it's not, because that's not the limit of Dr. Schaffer's testimony.

[00:23:46] Speaker 00:
First, he's a person of skill in the art under the definition that Surgiline proposed and the board adopted at appendix 102 to 03.

[00:23:54] Speaker 00:
But that's not the only testimony from Dr. Shaffrey about his experience and knowledge about allografts, how they're created, and how the bone pin would be used in conjunction with them.

[00:24:05] Speaker 00:
He testifies about allografts based not only on his personal experience as a surgeon of over 30 years, but his review of industry literature,

[00:24:13] Speaker 01:
No, I appreciate that.

[00:24:15] Speaker 01:
But if he has a declaration, and I don't have the declaration in front of me, so I don't remember all the details.

[00:24:20] Speaker 01:
But if most of his declaration deals with the problems of autographed, what does he say with respect to allographed?

[00:24:29] Speaker 01:
He just says these problems are also the same, right?

[00:24:32] Speaker 01:
I mean, is that not kind of conclusory?

[00:24:34] Speaker 00:
I know, Your Honor, it's not, again, for the same reasons that he has the background knowledge of aligraphs based on his experience in review of the literature.

[00:24:43] Speaker 00:
But the board didn't just rely on Chaffrey.

[00:24:46] Speaker 00:
The board also relied significantly in the bone port pin discussion on Mr. Gaskin, a technician who was there at the very beginning, the invention of the LifeNet patents, and has over 20 years of experience

[00:24:59] Speaker 00:
creating, machining these bone pins and allografts in the tissue bank.

[00:25:04] Speaker 00:
And his testimony is from between appendix 4770 and 74ish.

[00:25:10] Speaker 00:
Now, Your Honor, I do want to make sure that I address my cross appeal in this portion of my argument time before sitting down.

[00:25:17] Speaker 00:
So let's start briefly with first principles.

[00:25:20] Speaker 00:
that the specification is the single best guide to the meaning of a disputed term.

[00:25:26] Speaker 00:
This is not a case where a party is trying to improperly limit the claim to a preferred embodiment.

[00:25:32] Speaker 00:
Instead, the LIKENET patents, both of them, since they share a common specification, implicitly define dispose between by its repeated, consistent, and exclusive use of dispose between to require complete separation.

[00:25:47] Speaker 00:
The 158 patent doesn't change that.

[00:25:50] Speaker 00:
disposed between and not in physical contact in the same claim can be understood in harmony to both require complete separation because those two terms, like in the Bancorp case, are used from different perspectives referring to different materials to get to the same structural result.

[00:26:10] Speaker 00:
If your honors have no further questions, I'll reserve the remainder of my time for rebuttal.

[00:26:15] Speaker 03:
OK.

[00:26:15] Speaker 03:
I think we're OK.

[00:26:16] Speaker 03:
And we'll leave you some rebuttal time in your cross-appeal.

[00:26:28] Speaker 02:
Mr. Hedrick.

[00:26:31] Speaker 02:
My time's 3.05.

[00:26:35] Speaker 02:
Then I'm going to confine myself briefly on the cross appeal and then a few points

[00:26:42] Speaker 02:
In on the 1118 appeal on the cross appeal This is not an implicit redefinition case and life net knew how to claim complete completely separate when it wanted to as shown by the not in physical contact language of claim one and two of the earlier issued 158 patent

[00:27:00] Speaker 02:
And I think in the cross appeal, the most important thing we have to remember is that the board found that the ordinary meaning of disposed between does not require complete separation of the surrounding structure that's at appendix 114.

[00:27:13] Speaker 02:
And LifeNet did not challenge that.

[00:27:15] Speaker 02:
Instead, they are arguing a special and narrower meaning of a range to completely separate, which they admit is not aligned with the ordinary meaning.

[00:27:25] Speaker 02:
As far as implicit redefinition goes, they waited until the reply brief to cite any case law on that point.

[00:27:33] Speaker 02:
I'll just briefly address it while I can.

[00:27:36] Speaker 02:
And that is, we know that if there's going to be any implicit redefinition, it must be clear from the specification.

[00:27:41] Speaker 02:
We cited Thorner and MBO Labs.

[00:27:44] Speaker 02:
And of course, Phillips tells us that you must have a clear redefinition.

[00:27:48] Speaker 02:
Their cases are all distinguishable.

[00:27:51] Speaker 02:
I don't have time to handle them all, but I will say this, that none of them involve a second patent, uses a related patent, substantially same specification, recites the exact same claim term, an additional language that would be rendered surplusage if the advocated construction were adopted.

[00:28:13] Speaker 02:
I think I'm going to leave it on that, and I will turn back to the 1118 plate-like appeal, if I may.

[00:28:20] Speaker 02:
I heard a number of questions.

[00:28:22] Speaker 02:
Judge Proce, you asked me for some figures that might support construction of plate-like.

[00:28:27] Speaker 02:
There are a variety of figures in the patent, but I would refer, Your Honor, to figures 14 and 34, which show plate-like structures that have curves on them.

[00:28:37] Speaker 02:
They are generally flat in the horizontal orientation and the orientation of implant.

[00:28:42] Speaker 02:
Also, I think critical to consider is the Janssen reference, which was the prior art reference that we cited as extrinsic evidence as the meaning of platelike.

[00:28:52] Speaker 02:
It's the only objective contemporaneous evidence of a patent that actually uses the term platelike and shows us what it means.

[00:29:00] Speaker 02:
And what does it show us?

[00:29:02] Speaker 02:
It shows us C-shaped implants for use in the spine.

[00:29:07] Speaker 02:
that are generally flat in the horizontal and vertical, I'm sorry, in the horizontal orientation.

[00:29:13] Speaker 02:
And that C shape is important, because that's what the board pointed to when they said trims and fall fell outside a plate like.

[00:29:24] Speaker 02:
This council mentioned the maximization of surface area and that the alleged invention provides for this.

[00:29:31] Speaker 02:
That's not in the claims.

[00:29:32] Speaker 02:
That's not an element of the claims.

[00:29:34] Speaker 02:
And then also, council mentioned the overall shape and sometimes called it the all aspects or all sides and angles.

[00:29:40] Speaker 02:
That's not correct.

[00:29:41] Speaker 02:
The board's construction is generally flat, no other limitations.

[00:29:47] Speaker 02:
Unless your honors have any other questions, I am done.

[00:29:51] Speaker 03:
OK.

[00:29:51] Speaker 03:
Thank you.

[00:29:52] Speaker 02:
Thank you.

[00:29:53] Speaker 03:
Thank you.

[00:29:54] Speaker 03:
And Mr. Galluzo, you got the last word.

[00:29:57] Speaker 03:
Just on the cross appeal, please.

[00:30:02] Speaker 00:
I support your honor.

[00:30:03] Speaker 00:
Thank you.

[00:30:06] Speaker 00:
Your Honor, as I was stating on our cross appeal, Life Net's patents implicitly define and dispose between by its repeated, consistent, and exclusive use of dispose between in the specification and in the figures of both patents to require complete separation.

[00:30:23] Speaker 00:
And what emphasizes and reinforces that implicit definition is that when there are structures that are not physically separated, the patents use different terms.

[00:30:33] Speaker 00:
They use terms like disposed in.

[00:30:36] Speaker 00:
disposed through channel, canal, and through hole.

[00:30:40] Speaker 00:
it is very clear from the specifications of both patents that this is an implicit redefinition case.

[00:30:48] Speaker 00:
And as I said, the claims of the 158 patent, disposed between and not in physical contact, can be understood in harmony to both require the same structure, just like in the Bancorp case, which is properly applied to the claims of the 158 patent.

[00:31:06] Speaker 00:
In that case, the court had to grapple with whether two claim terms in close proximity in the independent claims could mean the same thing.

[00:31:13] Speaker 00:
The court correctly found they did.

[00:31:15] Speaker 00:
That's the analysis the court should apply here.

[00:31:17] Speaker 00:
We respectfully request the court affirm the decision as to Grooms, Paul, and Walter and reverse as to dispose between in claims 12 to 21 of the 5-3-2 patty.

[00:31:30] Speaker 03:
Anything else?

[00:31:32] Speaker 03:
Okay.

[00:31:32] Speaker 03:
Okay.

[00:31:33] Speaker 03:
Thank you.

[00:31:34] Speaker 03:
Thanks to both counsel.

[00:31:35] Speaker 03:
Case is taken under submission.