[00:00:00] Speaker 00:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:07] Speaker 00:
God save the United States and this honorable court.

[00:00:18] Speaker 04:
The first argued case this morning is number 20, 1315, Valve Corporation against Ironberg Inventions Limited.

[00:00:27] Speaker 04:
Ms.

[00:00:28] Speaker 04:
Israel, proceed.

[00:00:35] Speaker 01:
Are you unmuted?

[00:00:37] Speaker 01:
I am unmuted.

[00:00:38] Speaker 01:
Yes, Your Honor.

[00:00:40] Speaker 01:
May it please the Court?

[00:00:42] Speaker 01:
Subject to the Court's questions, I plan to focus my argument on three issues.

[00:00:46] Speaker 01:
First, that the Board erred in its determination that Valve had not shown that the Burns reference is a printed publication.

[00:00:54] Speaker 01:
Second, that the Board erred in narrowly construing the term elongate member, as used in certain claims that are at issue.

[00:01:02] Speaker 01:
and third, that the board heard in its determination that Valve's evidence was insufficient to support a finding of obviousness of certain claims of the 229 patent based on a combination of Dewey and Tussock.

[00:01:17] Speaker 01:
Turning to the first issue.

[00:01:20] Speaker 02:
Just to be clear about second and third issues, if we were to reject your position on elongate member, it doesn't matter.

[00:01:31] Speaker 02:
whether there was a motivation to combine you and Tosaki, is that right?

[00:01:43] Speaker 01:
I believe that is correct.

[00:01:54] Speaker 02:
Okay, thank you.

[00:02:02] Speaker 04:
Okay, if you change your mind, Ms.

[00:02:03] Speaker 04:
Israel, you can tell us on rebuttal.

[00:02:06] Speaker 01:
Okay, I will.

[00:02:07] Speaker 01:
I just need to make sure that the claims terms overlap, the claims overlap.

[00:02:13] Speaker 01:
So turning to the first issue that the board erred in with respect to its determination on whether valves had shown that the burns were up into the printed publication.

[00:02:25] Speaker 01:
The board

[00:02:26] Speaker 01:
erred in failing to consider all the facts and circumstances in arriving at its conclusion.

[00:02:33] Speaker 01:
There was uncontroverted evidence in the record that shows that Burns was disseminated to members of the interested public with no expectation of secrecy.

[00:02:43] Speaker 01:
The board, however, focused on the evidence in isolation and looked at each piece of evidence without considering all the facts and circumstances.

[00:02:54] Speaker 01:
The Burns reference is

[00:02:56] Speaker 01:
It was a review of the SCUF Xbox 360 controller by David Burns and it was published to a website Xbox360.com on October 20th of 2010 and then it was later copied by the Internet Archive to the Wayback Machine and it was cited on the face of the 229, the 688 patents and

[00:03:25] Speaker 01:
the 525 patent, which is a patent that is by the same inventors as the patents that issue here and is directed to related technology.

[00:03:40] Speaker 05:
Ms.

[00:03:41] Speaker 05:
Israel, if we agree with you on the public accessibility of burns, that basically affects the 229 patent, right?

[00:03:52] Speaker 05:
And the case would have to go back for adjudication on burns, considering burns.

[00:04:02] Speaker 01:
It affects both the 229 patent and the 688.

[00:04:06] Speaker 05:
Well, 688, does that include more than claim 29?

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

[00:04:18] Speaker 05:
What, 18 to 26?

[00:04:21] Speaker 01:
It includes claims 1, 2, 9, 10, 18, 19, 21, 26, and 28 to 30.

[00:04:32] Speaker 01:
Now some of those claims were found to be anticipated based on UE and that's the subject of Ironbrook's cross appeal.

[00:04:43] Speaker 02:
All right.

[00:04:44] Speaker 02:
So putting to one side the cross appeal, only claim 29 is involved on your appeal, right?

[00:04:52] Speaker 02:
of the 688.

[00:04:55] Speaker 01:
The Claim 29 is part of the cross appeal with respect to the claim construction issue of elongate member and whether it's anticipated by UE or whether VALS had shown that UE anticipates that claim.

[00:05:18] Speaker 02:
Well, I'm confused.

[00:05:20] Speaker 02:
Isn't Judge Lurie right that

[00:05:22] Speaker 02:
On your appeal, the only claim of the 68A that's involved is claim 29, correct?

[00:05:32] Speaker 01:
Not for the Burns reference.

[00:05:34] Speaker 02:
For the Burns... I thought that you're appealing only from the board's refusal to find claim 29 in unpatentable with respect to 68A.

[00:05:52] Speaker 05:
The board found that burns... The board did not... If I could intervene, weren't claims 1, 2, 9, and 10, 28 and 30 found unpatentable on grounds other than burns?

[00:06:17] Speaker 01:
That is correct, Judge Lurie.

[00:06:18] Speaker 01:
Those claims were found to be anticipated by UE.

[00:06:23] Speaker 01:
And so long as the board's anticipation finding is undisturbed, then the court doesn't need to reach those claims on the burns grounds.

[00:06:31] Speaker 01:
But there are other claims.

[00:06:33] Speaker 01:
So claims 11 to 17 and 21 to 20.

[00:06:40] Speaker 01:
Wrong claims.

[00:06:46] Speaker 01:
Let me try again.

[00:06:47] Speaker 01:
To claim 18, claim 19, claim

[00:06:53] Speaker 05:
21 and 26.

[00:06:54] Speaker 01:
21 and 26 and 29 are not, were not specifically addressed as found to be anticipated by UE.

[00:07:05] Speaker 01:
So those would be at issue with respect to the burns grounds.

[00:07:11] Speaker 04:
All right.

[00:07:16] Speaker 04:
Okay, proceed.

[00:07:17] Speaker 01:
All right.

[00:07:18] Speaker 01:
So the evidence that's,

[00:07:22] Speaker 01:
that was of record and not specifically considered based on all the facts and circumstances by the board includes the Burgess deposition testimony that's at appendix 2646 to 49 and 6048 to 51.

[00:07:37] Speaker 01:
There, inventor Simon Burgess testified that he facilitated publication of the Burns reference.

[00:07:45] Speaker 01:
He gave the controller for free to David Burns

[00:07:49] Speaker 01:
with an intent that Mr. Burns would write and publish a review.

[00:07:52] Speaker 01:
And it was for the purpose to publicize a game controller that was being sold by Mr. Burgess's company, Scuff Control, which at that time had no significant sales.

[00:08:05] Speaker 01:
In addition, there's comments on the Burns reference itself at appendix 3829 to 3832 that show that the reference was disseminated to an audience of the Xbox or 360.com.

[00:08:19] Speaker 01:
The comments themselves show that it was disseminated to members of the interested public.

[00:08:28] Speaker 01:
In addition, the record includes the Burgess Declaration at Appendix 1717 and 5308 showing that Mr. Burgess knew about the Burns reference and had referred to it at the time of publications, effectively admitting that it had been published.

[00:08:49] Speaker 01:
In addition, Burns is cited in the 688 patent file history at Appendix 2440.

[00:08:57] Speaker 01:
There, the applicants had characterized the reference as prior art as noted in an examiner interview summary that led to allowance.

[00:09:07] Speaker 01:
And in addition, as noted by the board, there was also the examiner interview summary in the 525 patent file history

[00:09:17] Speaker 01:
And that established where the examiner noted that burns had been, had located burns during prosecution of the 525 patent prior to the critical dates at issue here.

[00:09:29] Speaker 01:
And that the prosecution copy of burns showed that there were comments on it showing it had been accessed at least as early as when the examiner located it.

[00:09:38] Speaker 01:
You can see that in appendix 2005 to 6 and 53, 26, 27.

[00:09:47] Speaker 01:
The board erred in failing to consider all the evidence and which in this court should vacate and remand for the board to consider the burns-related grounds on the merits.

[00:10:00] Speaker 01:
If I could briefly address the issue that the board erred in its construction of the term elongate member for claim 29 of the 688 patent and for claims at issue of the 229 patent.

[00:10:16] Speaker 01:
And the court should vacate and remand to have a determination based on the correct claim construction on the UE grounds.

[00:10:28] Speaker 01:
Specifically, the claims recite an elongate member and the board improperly excluded any type of elongate member that's made up of multiple parts where there's one part that may have contributed to the inherent resilience and flexibility

[00:10:46] Speaker 01:
flexible property of the whole elongate member.

[00:10:52] Speaker 04:
Okay.

[00:10:52] Speaker 04:
Please take another minute or two on your third point.

[00:10:57] Speaker 01:
Okay.

[00:11:00] Speaker 01:
Just to note, there are parts in the areas in the specification that disclose multi-part assembly

[00:11:09] Speaker 01:
elongate members and I'll refer the court to the remap device that is at column 5, lines 48 to 51 of the 229 patent where it discusses that an elongate member comprises a remap device that's shown in figure 19 and further discussed at column 13, lines 13 to 16.

[00:11:29] Speaker 01:
On my third point, the board erred in its determination that claims

[00:11:37] Speaker 01:
3 to 8 and 19 of the 229 patent had not been shown to be obvious over the combination of Ui and Tasaki by applying too narrow of an obviousness standard.

[00:11:47] Speaker 01:
Specifically, Valve had presented evidence, a declaration of Dr. Rempel at Appendix 3344 showing how a skilled artisan would have recognized the combination of Ui and Tasaki.

[00:12:02] Speaker 01:
Dr. Rempel's testimony was unrebutted and showed that a skilled artisan would have recognized the use for Sasaki's teachings in UE's controller.

[00:12:11] Speaker 01:
The board required that a higher standard that the teachings of Sasaki had actually been used in or would be used in UE rather than showing that it was an available option.

[00:12:29] Speaker 01:
This flawed analysis

[00:12:31] Speaker 01:
of this flawed obviousness standard impacted its obviousness analysis and this, the court should vacate and remand for the board to consider the obvious, this obviousness ground.

[00:12:47] Speaker 01:
And if the court has any questions, I'll save the rest of my time for rebuttal.

[00:12:51] Speaker 04:
Okay, no, we'll save your rebuttal time.

[00:12:53] Speaker 04:
Let's hear first from the intervener, Ms.

[00:12:56] Speaker 00:
Caprian.

[00:12:58] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:13:00] Speaker 00:
The Director intervened in the case to address Valve's Appointment Class Challenge, which wasn't raised in the opening argument, but as this Court has already correctly ruled in denying Valve's prior motion for remand on this issue, Valve forfeited such a challenge under this Court's precedent in Sienna.

[00:13:16] Speaker 00:
And because Valve also never filed a motion asking this Court to reconsider its prior decision within the 14-day time period provided in Federal Circuit Rule 27, Valve should be precluded from raising the challenge anew.

[00:13:30] Speaker 04:
Now, let's stop right there.

[00:13:34] Speaker 04:
You're saying that unless reconsideration is requested, the issue is dead.

[00:13:41] Speaker 04:
That's quite an interesting concept.

[00:13:44] Speaker 00:
Yes, Your Honor.

[00:13:45] Speaker 00:
Under Rule 27, and right now it's Rule 27J.

[00:13:49] Speaker 00:
At the time when VAL filed its motion and filed its briefing, it was Rule 27L.

[00:13:55] Speaker 00:
But it states that when a party seeks

[00:13:58] Speaker 00:
to reconsider a decision by the panel that's not a dispositive order.

[00:14:04] Speaker 00:
It has 14 days to do so.

[00:14:07] Speaker 00:
And for this reason, Bell cannot challenge that ruling now because it did not ask for reconsideration within the 14-day time period under Rule 27.

[00:14:17] Speaker 02:
What case does that?

[00:14:20] Speaker 00:
The Federal Circuit rules dictate that.

[00:14:23] Speaker 00:
I think there are some cases where this court has

[00:14:27] Speaker 00:
determined that if the prior ruling was by a single judge, the court can reconsider that issue.

[00:14:35] Speaker 00:
And that's also in Federal Rules of Appellate Procedure 27C.

[00:14:39] Speaker 00:
But here we have a decision by a panel of three judges determining that Valpire forfeited the issue under this court's presidential decision under Sienna.

[00:14:52] Speaker 00:
Valve hasn't shown that the court should depart from that presidential decision for any reason.

[00:14:57] Speaker 00:
So because of that, because it both forfeited this challenge under the court's precedent in Vienna and because it fails to seek reconsideration within Federal Circuit Rule 27, the court should reject Valve's Appointment Clause Challenge.

[00:15:16] Speaker 00:
If there are no further questions, I yield the rest of my time.

[00:15:20] Speaker 04:
All right.

[00:15:21] Speaker 04:
Any more questions, Ms.

[00:15:22] Speaker 04:
Kaepernick?

[00:15:23] Speaker 05:
No.

[00:15:24] Speaker 04:
All right.

[00:15:24] Speaker 04:
Then we'll hear from the cross appellant, Mr. Becker.

[00:15:29] Speaker 03:
Thank you, Your Honor.

[00:15:30] Speaker 03:
Good morning and may it please the court.

[00:15:32] Speaker 03:
My name is Robert Becker and I'm arguing for the patent holder, Ironberg Adventures.

[00:15:38] Speaker 03:
I actually have limited comments this morning.

[00:15:42] Speaker 03:
I'd like to focus on the comments by VALS counsel regarding

[00:15:49] Speaker 03:
the Burns publication.

[00:15:52] Speaker 02:
Well, let's talk about that, Mr. Becker.

[00:15:54] Speaker 02:
OK.

[00:15:55] Speaker 02:
I mean, you have two prosecutions here where examiners of the PTO found that the Burns reference was prior art.

[00:16:05] Speaker 02:
And if I understand correctly, the board has said that it's not going to consider that because there wasn't any testimony making a comparison

[00:16:17] Speaker 02:
between the documents in the prosecution history and the documents here in the IPR.

[00:16:23] Speaker 02:
But the documents are 11 pages long.

[00:16:26] Speaker 02:
They're here in the record.

[00:16:28] Speaker 02:
Anybody can look at them and see that they're substantially the same.

[00:16:33] Speaker 02:
Why isn't that an arbitrary approach to this issue?

[00:16:39] Speaker 03:
Well, Your Honor, thank you.

[00:16:41] Speaker 03:
I believe the board said more than that.

[00:16:45] Speaker 03:
There were a number of.

[00:16:47] Speaker 02:
Well, let's stick with that for the moment.

[00:16:49] Speaker 02:
Because that's one of the things they said.

[00:16:52] Speaker 02:
That's silly, right?

[00:16:53] Speaker 02:
I mean, you can look at the documents.

[00:16:55] Speaker 02:
I can look at the documents.

[00:16:56] Speaker 02:
They're substantially the same.

[00:16:58] Speaker 02:
Why would somebody want to do that?

[00:17:01] Speaker 03:
I disagree with that.

[00:17:02] Speaker 03:
They are similar, but they are different.

[00:17:06] Speaker 03:
And they're all different, and they all bear different dates.

[00:17:10] Speaker 03:
And none of them.

[00:17:13] Speaker 03:
state that they were published anywhere, let alone being publicly accessible.

[00:17:17] Speaker 02:
What's the difference in the substance?

[00:17:20] Speaker 03:
Forget about it.

[00:17:23] Speaker 03:
The pictures are different.

[00:17:25] Speaker 03:
They're different sizes.

[00:17:26] Speaker 03:
There's different arrangements.

[00:17:27] Speaker 03:
Some are in color.

[00:17:28] Speaker 03:
Some are not.

[00:17:29] Speaker 03:
And when we're talking about a disclosure about where the pictures are, the primary evidence of the disclosure, it's very material.

[00:17:38] Speaker 02:
What's the substantive difference between the pictures?

[00:17:41] Speaker 03:
Well, some of them are in some of the exhibits and some of them are not.

[00:17:46] Speaker 02:
Well, so?

[00:17:49] Speaker 02:
So there are different disclosures.

[00:17:52] Speaker 02:
There is a lot of overlapping disclosure at the pictures, isn't there?

[00:17:57] Speaker 02:
There is, yes.

[00:17:59] Speaker 03:
OK.

[00:17:59] Speaker 02:
So why, what's the problem with comparing them and finding that there's similarity or identity in the picture?

[00:18:09] Speaker 03:
Well, the petitioner has the burden of providing the evidence in this petition that it's going to rely on.

[00:18:16] Speaker 03:
And it provided a reference that's dated 2017 and is not the reference that's in these other files.

[00:18:25] Speaker 03:
There are similarities, but that's not what they relied on their petition.

[00:18:28] Speaker 03:
They set forth a 2017 dated document without any declaration or subscribing witness

[00:18:36] Speaker 03:
They do not have a witness that states that it was ever published anywhere.

[00:18:42] Speaker 03:
They don't have a witness that tells us what the content of it was, if it was published.

[00:18:48] Speaker 02:
The same document is in the prosecution history.

[00:18:50] Speaker 02:
What's the problem?

[00:18:52] Speaker 03:
Well, the prosecution history also didn't have a document from 2010.

[00:18:56] Speaker 03:
And the issue of whether it was prior art was not litigated.

[00:19:01] Speaker 02:
The patents, it says that it was published

[00:19:05] Speaker 02:
in 2010, doesn't it?

[00:19:08] Speaker 03:
Well, I mean, I can print out a document today and write on it 2010, but that doesn't mean it was actually published in 2010.

[00:19:14] Speaker 03:
There has to be some witness that corroborates that.

[00:19:18] Speaker 02:
On the face of the patent, it says it was published in 2010, and that's not reliable?

[00:19:25] Speaker 03:
Absolutely not.

[00:19:26] Speaker 03:
The examiner is simply writing down what the content say on the face of that document.

[00:19:31] Speaker 03:
It is not a patent.

[00:19:32] Speaker 03:
It is a document.

[00:19:34] Speaker 03:
from the United Kingdom that was alleged to have been published at some point.

[00:19:40] Speaker 03:
But there's no testimony from the Wayback Machine, a webmaster.

[00:19:46] Speaker 03:
There's no testimony from Mr. Burns or anyone else who's familiar with the publication.

[00:19:52] Speaker 03:
We don't know if it was published in 2010.

[00:19:55] Speaker 03:
We don't know what it had in it if it was published in 2010.

[00:19:58] Speaker 03:
And we don't know if what was there was publicly accessible.

[00:20:03] Speaker 05:
Council, Burns was published in an online magazine as a promotional item to be intended for public dissemination.

[00:20:12] Speaker 05:
It was cited during prosecution of patents, other patents, so it was clearly accessible.

[00:20:20] Speaker 03:
If I may, Your Honor, it was cited much later.

[00:20:23] Speaker 03:
It was not cited in 2010 when it's alleged to have been published.

[00:20:28] Speaker 03:
We don't know what the status of Burns was in 2010.

[00:20:31] Speaker 03:
We don't know

[00:20:32] Speaker 03:
when he made his site publicly available, if ever.

[00:20:37] Speaker 03:
We don't know that.

[00:20:38] Speaker 03:
It was never disputed in the prior prosecutions, and the applicant was able to overcome Burns without having to discuss whether it was prior art.

[00:20:48] Speaker 02:
Well, there was never any suggestion that it wasn't by the applicant, right?

[00:20:52] Speaker 02:
I mean, here the examiner, wait, the examiner shows the applicant that he's discovered the Burns reference.

[00:21:03] Speaker 02:
and he characterizes examiner in two of these prosecutions, the 525 and the 688, says it's prior R and the applicant doesn't say otherwise.

[00:21:18] Speaker 03:
You know, this is a very common occurrence in prosecution.

[00:21:22] Speaker 03:
The examiner contends that everything is prior R and applicants typically do not challenge whether a document is prior R. They simply

[00:21:31] Speaker 03:
attempt to overcome it.

[00:21:33] Speaker 03:
In this situation, during ex parte prosecution, the burdens are different.

[00:21:38] Speaker 03:
The examiner is not under the same burdens as the petitioner is here in an IPR to establish a reference as prior art and having the burden of persuasion and production during the entire proceeding.

[00:21:51] Speaker 03:
The examiner can cite a reference and shift the burden to the applicant, and the applicant can rebut what the examiner has submitted

[00:22:01] Speaker 03:
by either overcoming the reference or arguing that it's not prior art.

[00:22:05] Speaker 03:
In this case, it overcame the reference.

[00:22:15] Speaker 05:
Okay, please proceed.

[00:22:17] Speaker 03:
Sure, thank you.

[00:22:18] Speaker 05:
Want to talk about the elongate member?

[00:22:22] Speaker 03:
Yes, the elongate member.

[00:22:24] Speaker 03:
the what I'll call paddles in the main embodiment of this invention are very similar to a diving board, for example.

[00:22:33] Speaker 03:
They're pinned on one end.

[00:22:34] Speaker 03:
They're thin.

[00:22:36] Speaker 03:
They're inherently resilient and flexible.

[00:22:39] Speaker 03:
And it allows the user's fingers to manipulate them so that they have a sort of action to them so that they can actuate a switch.

[00:22:51] Speaker 03:
claim members are inherently resilient and flexible.

[00:22:55] Speaker 03:
The word inherently is very important there because it indicates that the members themselves have this inherent characteristic.

[00:23:03] Speaker 03:
Valve attempted to show a button.

[00:23:09] Speaker 03:
I'll call it a button.

[00:23:10] Speaker 03:
It's actually very tall and rocks back and forth.

[00:23:13] Speaker 03:
It's not a thin paddle of any kind or an elongate member.

[00:23:20] Speaker 03:
But it certainly is rigid and does not have any inherent resiliency.

[00:23:26] Speaker 03:
And it doesn't have any inherent flexibility.

[00:23:30] Speaker 03:
Those characteristics are supplied in that design by a separate spring.

[00:23:36] Speaker 03:
And the board correctly found that the spring is not inherent in the elongate member.

[00:23:42] Speaker 03:
And the elongate member itself has no inherent resiliency or flexibility.

[00:23:47] Speaker 03:
So we would contend.

[00:23:48] Speaker 03:
that the claim was construed correctly and the validity challenge was correctly rejected.

[00:23:58] Speaker 03:
And I'll just mention briefly finally on the last element or the last argument that was made.

[00:24:07] Speaker 03:
There was an argument that the board used a heightened standard and failed to consider evidence of obviousness, but if,

[00:24:18] Speaker 03:
We looked carefully at what was submitted by the petitioner.

[00:24:23] Speaker 03:
Really nothing was submitted.

[00:24:25] Speaker 03:
There were three bullet points that were in the declaration from Mr. Rempel that simply stated conclusions.

[00:24:36] Speaker 03:
And there was no analysis, no discussion of any components of the prior art.

[00:24:43] Speaker 03:
And the board correctly found that that was

[00:24:46] Speaker 03:
not up to the standards of KSR.

[00:24:50] Speaker 03:
With that, I'd like to reserve the remainder of my time unless there are any questions.

[00:24:55] Speaker 04:
Okay.

[00:24:55] Speaker 04:
Any questions at the moment for Mr. Becker?

[00:24:58] Speaker 03:
No.

[00:24:59] Speaker 04:
Okay.

[00:24:59] Speaker 04:
And we'll hear from Ms.

[00:25:00] Speaker 04:
Israel.

[00:25:01] Speaker 04:
You have your rebuttal time.

[00:25:08] Speaker 01:
Are you unmuted?

[00:25:10] Speaker 01:
I am unmuted, yes.

[00:25:14] Speaker 01:
Okay.

[00:25:14] Speaker 01:
So first, just to address the issues raised by the Director with respect to the Arthur X argument.

[00:25:27] Speaker 01:
We disagree that there was any requirement for Valve to have sought reconsideration.

[00:25:34] Speaker 01:
In fact, the Rule 27J applies to non-dispositive motions asking for reconsideration.

[00:25:41] Speaker 01:
The motions that Valve had filed were to terminate and vacate and remand the appeals, which would have been dispositive.

[00:25:48] Speaker 01:
Second, there was a Valve... The Sienna case is not necessarily dispositive of this case, which can be considered on its merits as to whether there was forfeiture or waiver.

[00:26:04] Speaker 01:
Turning next to the burns issue,

[00:26:14] Speaker 01:
There is the documents in the record, as noted, the board could have considered the different versions of the burns, the copies of burns that were in the record and have determined that they were substantially the same and that the burns reference, which was what the ground was based on, was, is what is important to be.

[00:26:41] Speaker 01:
The focus that Ironberg makes on the specific petition copies of burns is not the issue.

[00:26:49] Speaker 01:
While those may have been, even then, while those may have been dated 2017 as just a print date, the reference itself also notes that there's comments on it showing that it was six years old.

[00:27:04] Speaker 01:
The reference that Val had, or Ironberg had referred to the,

[00:27:10] Speaker 01:
Burns as having been published in 2010, and it was accessible before showing that it was accessible for the critical date.

[00:27:18] Speaker 01:
In fact, during prosecution, the applicants had acknowledged Burns to be prior art in prosecution.

[00:27:26] Speaker 01:
So that is actually how they referenced the Burns reference.

[00:27:33] Speaker 01:
With respect to the elongate member issue,

[00:27:40] Speaker 01:
We again re-urged that the board did not correctly construe the term elongate member.

[00:27:48] Speaker 01:
Ironberg has focused more on the application of elongate member as not being limited to, or as being limited to a multi, a monolithic assembly and not being permitted to be made from more than one part.

[00:28:08] Speaker 01:
So in this instance,

[00:28:09] Speaker 01:
It was a, there could be features here, the spring feature of the UE reference as an example that could supply the inherently flexible and apparently resilient and flexible feature of the elongate member.

[00:28:27] Speaker 01:
And finally, with respect to the evidence, with respect to the obviousness analysis in the

[00:28:40] Speaker 01:
based on Dr. Remboldt's testimony.

[00:28:43] Speaker 01:
While, yes, he testified with respect to three points, this is a simple technology.

[00:28:50] Speaker 01:
And his evidence was sufficient to show that there was a reason to combine the two references.

[00:28:58] Speaker 01:
And the board erred in applying too narrow of an obvious misstandard.

[00:29:03] Speaker 01:
And this court should vacate and remand.

[00:29:07] Speaker 01:
For all those reasons, we respectfully request that the court vacate and remand to consider the grounds on which we have referred based on the Burns grounds and the UE grounds.

[00:29:27] Speaker 01:
And unless this court has any further questions, I will cede the rest of my time.

[00:29:33] Speaker 04:
Any questions for Ms.

[00:29:34] Speaker 04:
Israel?

[00:29:35] Speaker 05:
No.

[00:29:36] Speaker 04:
OK.

[00:29:37] Speaker 04:
Thank you.

[00:29:37] Speaker 04:
So Mr. Becker, do you have another minute or so?

[00:29:40] Speaker 03:
OK.

[00:29:42] Speaker 03:
Thank you, Your Honor.

[00:29:43] Speaker 03:
Actually, the cross appeal didn't come up, so I'm not sure that I'm permitted to reply on that now.

[00:29:52] Speaker 03:
If I am, I'll make a few comments.

[00:29:54] Speaker 03:
Otherwise, I'm finished.

[00:29:57] Speaker 04:
Any questions for Mr. Becker?

[00:29:59] Speaker 05:
No.

[00:30:01] Speaker 05:
I compliment Mr. Becker for being alert to the

[00:30:04] Speaker 05:
procedural point.

[00:30:06] Speaker 04:
Thanks to all counsel.

[00:30:10] Speaker 04:
The case is taken under submission.