[00:00:00] Speaker 02: The next argued case this morning is number 211340, Wright Medical Technology, Incorporated against Paragon 28, Incorporated. [00:00:11] Speaker 02: Mr. McPherson. [00:00:14] Speaker 00: May it please the court. [00:00:16] Speaker 00: With respect to patents, the 252, the 253, and the 278, the board made two errors common to all three of those patents. [00:00:24] Speaker 00: The first error relates to ground one, and the issue there is [00:00:29] Speaker 00: whether the 2006 application, the priority document, contains written description support for the claim term locking script. [00:00:39] Speaker 00: The undisputed facts with respect to round one are the invention is about plates and screws that attach to small bones. [00:00:48] Speaker 00: Number two, the 2006 application expressly discloses a bone plate, including a threaded screw hole. [00:00:56] Speaker 00: And the third fact, the purpose of a threaded screw hole is to receive a threaded head screw. [00:01:02] Speaker 00: The board erred in finding there was no written description support because they used an overly restrictive interpretation of the law that a locking screw must be a necessary counterpart to the disclosed locking screw hole. [00:01:18] Speaker 00: Now, this is contrary to the well-established rule set forward in the Ariad case. [00:01:24] Speaker 00: which provides that the written description must reasonably convey to a person of ordinary skill and the art that the inventor was in possession of the invention. [00:01:34] Speaker 00: And the Ariad case provided a framework for that analysis. [00:01:39] Speaker 00: It's done on a case-by-case basis. [00:01:42] Speaker 00: You look at the knowledge of a person of ordinary skill and the art. [00:01:44] Speaker 00: You look at the complexity of the technology and the predictability of the technology. [00:01:50] Speaker 00: And here, [00:01:51] Speaker 00: There's no factual dispute. [00:01:53] Speaker 00: Paragon's expert in his direct testimony, in support of their petition, he testified it was commonly known to use either locking screws or non-locking screws with bone plates. [00:02:05] Speaker 00: He further went on and said that a person of ordinary skill in the art would design plates with either locking or non-locking screws depending upon the type of application. [00:02:16] Speaker 00: So it's clear here this is not complex technology. [00:02:20] Speaker 00: It's predictable. [00:02:21] Speaker 00: In fact, our expert admits there's two choices, locking screws or non-locking screws. [00:02:28] Speaker 00: Here, corresponding screw holes in the bone plate match the desired type of screw to be used. [00:02:35] Speaker 00: The board's factual finding on this is dispositive of this issue. [00:02:38] Speaker 00: The board found the evidence establishes that a person of ordinary skill in the art would have known in January 2006 [00:02:46] Speaker 00: That one purpose of a threaded screw hole bore is to receive the threaded head of a locking screw. [00:02:54] Speaker 00: Because the spec reasonably conveys a locking screw, there is no need for the bore to do an analysis of whether the term locking screw is expressly used or to go further and say it needs to be inherent, that it must be a necessary counterpart for a locking screw hole. [00:03:14] Speaker 00: we asked the court to reverse the board and find that the patents are entitled to the priority date of 2006 application. [00:03:23] Speaker 00: And neither reference in ground one is therefore a prior art. [00:03:27] Speaker 00: With respect to the second error that the board made with respect to these patents, the second error relates to ground two. [00:03:34] Speaker 00: And that's the combination of the Grusin reference and the Fernandez reference. [00:03:39] Speaker 00: Grusin teaches attaching a plate to small bones. [00:03:43] Speaker 00: and specifically the small bones of the wrist. [00:03:47] Speaker 00: And the problem presented is the interaction between the screws that go into the bone plate and the tissue surrounding the screw head. [00:03:57] Speaker 00: The problem results in damage to tendons and ligaments. [00:04:01] Speaker 00: And Gruson teaches that even a slightly damaged screw head can cause what's known as scrub necrosis, the tissues and ligaments rubbing against this screw that then kills the tissue. [00:04:13] Speaker 00: The solution was to reduce irritation in wear by using specially designed screws. [00:04:20] Speaker 00: And these are smooth, low-profile screw heads with no sharp edges extending above the plate. [00:04:28] Speaker 00: And this is shown in figure 76 of Rusen, which we've duplicated in the blue brief at page 17. [00:04:34] Speaker 00: The secondary reference Fernandez is directed to a different problem. [00:04:41] Speaker 00: That problem is the insertion of screws at a selectable angular orientation, that the surgeon has the ability to put the screws in at varying angles. [00:04:52] Speaker 00: Their solution was a screw with a spherical head. [00:04:55] Speaker 00: You have a rounded head, and you have threads extending throughout the whole spherical head. [00:05:02] Speaker 00: This is shown in figure 10 of Fernandez, which we've duplicated in the blue brief at page 19. [00:05:09] Speaker 00: And you can see there are sharp edges [00:05:11] Speaker 00: that extend above the plate when you put the screw in at any orientation. [00:05:18] Speaker 00: Paragon's motivation to combine was that using this screw head from Fernandez with the bone plate of gruesome provided flexibility for a surgeon to choose a desired screw angle. [00:05:31] Speaker 00: The problem is that defeats the express purpose of gruesome. [00:05:36] Speaker 00: It would increase damage to the soft tissue and make gruesome inoperable [00:05:41] Speaker 00: for its intended purpose. [00:05:43] Speaker 00: Fernandez never recognized the problem identified in Grusin. [00:05:47] Speaker 00: The screw heads are not low profile in Fernandez. [00:05:50] Speaker 00: The spherical head is entirely threaded. [00:05:53] Speaker 00: So no matter which orientation you put the screw head in, there's going to be sharp edges extending above the bone plate. [00:06:01] Speaker 00: And you compare this on a side-by-side view of figures 10 of Fernandez and figure 76 of Grusin. [00:06:08] Speaker 00: And we did that in our blue brief at page 43. [00:06:12] Speaker 00: The board never recognized it was the sharp edges of Fernandez that caused the damage. [00:06:17] Speaker 00: Instead, the court was focused on whether the head of Fernandez extended above or further than the head shown in Grusin. [00:06:25] Speaker 00: And the board says, Grusin seeks to reduce, but not necessarily to eliminate, the extent to which the fastener extends above a plate. [00:06:35] Speaker 00: That misses the point. [00:06:37] Speaker 00: That's only one consideration. [00:06:39] Speaker 00: Bruceon seeks to eliminate scrub necrosis by eliminating sharp edges above the plate. [00:06:46] Speaker 00: The combination proposed actually increases the sharp edges above the plate. [00:06:52] Speaker 00: The board recognized that suitability evidence was required, but in doing so, [00:07:00] Speaker 00: It shifted that burden to the patent owner and said the patent owner did not provide testimony as to the size of the screws, as to the size and durability of the tendons of the soft tissue. [00:07:11] Speaker 00: That burden should have been on Caragon that their expert need to address how to accommodate the sharp edges from the result combination. [00:07:20] Speaker 00: There was no evidence presented by the expert regarding sharp edges protruding above the plate. [00:07:25] Speaker 00: Because no evidence of sharp edges would not cause damage, there's no substantial evidence of a motivation to combine Grusin and Fernandez. [00:07:32] Speaker 00: We request the board to reverse, request the panel to reverse the board on ground two. [00:07:40] Speaker 00: With respect to the 4-4-3 patent and 2-7-8 patents, the board made two errors common to these patents. [00:07:48] Speaker 00: Both errors relate to whether the K reference includes the S curve limitation. [00:07:54] Speaker 00: In the petition, there's a single ground of the combination of K with Heinl. [00:08:00] Speaker 00: And the petition stated that K does not include an S-curve, but Heinl does. [00:08:05] Speaker 00: The board erred by not directly addressing the issue presented in this petition. [00:08:11] Speaker 00: Instead of addressing what the term medial line means in order to determine what the S-curve limitation requires, the board issued alternative rulings. [00:08:22] Speaker 00: One ruling was, if K does not include an S-curve, then the challenge claims are unpatentable in combination of K with Heinl. [00:08:29] Speaker 00: But it also issued an alternative ruling. [00:08:32] Speaker 00: And that is, if K does not disclose the S-curve, then the challenge claims are unpatentable in view of K alone. [00:08:38] Speaker 00: It's the second ruling. [00:08:42] Speaker 00: That holding is improper, because that's not what the petition argued. [00:08:46] Speaker 00: The petition argued a single ground. [00:08:49] Speaker 00: And that single ground was a combination of [00:08:52] Speaker 00: K and Heinel because K did not include the S-curve limitation. [00:08:57] Speaker 00: If the court finds that K does disclose an S-curve, then we request the court to find that there is no substantial evidence to support this ground, and this ground should be reversed. [00:09:08] Speaker 00: With respect to the K and Heinel ground that is in the petition, the petition does not identify substantial evidence. [00:09:14] Speaker 00: The petition states that K doesn't include an S-shaped middle line, but it never explains [00:09:21] Speaker 00: what Paragon understands the medial line to mean and never applies their definition of medial line to show what the medial line looks like in K. And without that, we think the petition is failing defective. [00:09:35] Speaker 00: Because without that, you can't then later say, but we're going to bend the K plate to get this S-curve medial line. [00:09:44] Speaker 00: And in doing so, if you look at the petition, [00:09:46] Speaker 00: there's no description of what that S-curve would look like, what that medial line would look like after that combination. [00:09:54] Speaker 00: So they don't describe what their definition of medial line is. [00:09:58] Speaker 00: They don't describe what the medial line looks like before the combination. [00:10:02] Speaker 00: They don't describe what the medial line looks like after combination. [00:10:05] Speaker 00: And that's complete failure proof in their petition. [00:10:09] Speaker 00: Now, on cross-examination, we ask their expert, when you say medial line, what does it mean? [00:10:15] Speaker 00: And he said, it's just the middle line of the trunk of the bone plate, ignoring the arms of the bone plate. [00:10:24] Speaker 00: And we said, that doesn't make sense, because in figure 43 of the 443 patent, it describes that bone plate as an S-curve. [00:10:34] Speaker 00: And it says that plate has a shallow S-curve along the middle line. [00:10:38] Speaker 00: And if you take the expert's definition that you ignore the arms, that plate clearly has a C-curve, not an S-curve. [00:10:46] Speaker 00: And the petitioners reply for the first time they address the medial line limitation and say, well, it's a line that divides the plate in half laterally. [00:10:56] Speaker 00: Well, that definition is so ambiguous that any line that divides a plate in half laterally can be straight, can be S-curve, can be C-shaped. [00:11:06] Speaker 00: That's so ambiguous it encompasses an unlimited number. [00:11:10] Speaker 00: As a result, in the final written description, [00:11:13] Speaker 00: The board never described the evidence that shows what the middle line of K looks like, either before or after modification, and what the middle line of K looks like with this combination that they put forward. [00:11:27] Speaker 00: This demonstrates lack of substantial evidence, and the challenge claims are therefore patentable. [00:11:36] Speaker 00: I'd like to address any questions the board has. [00:11:39] Speaker 02: At the moment, we'll have your rebuttal. [00:11:41] Speaker 02: Let's hear from the other side. [00:11:53] Speaker 02: Mr. Collins. [00:11:54] Speaker 01: Thank you, Your Honors. [00:11:56] Speaker 01: I want to address two misstatements I believe Wright's Council made in his arguments here today. [00:12:01] Speaker 01: First, he started off by saying that the board found that the purpose of a threaded screw hole is to accept a locking screw. [00:12:08] Speaker 01: That is not what the board found. [00:12:10] Speaker 01: The board went through in detail and found that there were multiple purposes of accepting a locking screw. [00:12:16] Speaker 01: And that includes, for example, plate benders that were disclosed in the 2006 application. [00:12:22] Speaker 01: It also includes the threaded shafts of non-locking screws, which were also disclosed in the 2006 application, and a host of other ones, including drill guides, screw guides, and other instruments as well, including a plate positioner. [00:12:38] Speaker 01: So it's a misstatement to say that the board found that the only purpose of a threaded bore is to accept a locking screw. [00:12:47] Speaker 01: And I think that's where this analysis gets off track. [00:12:52] Speaker 01: One second, please. [00:12:55] Speaker 01: If you look back at what the board actually did, it stepped through the analysis that this court has said is the proper analysis in Ariad, in Power Oasis, and in Tronzo. [00:13:07] Speaker 01: In Ariad, the court explicitly said that obviousness is insufficient. [00:13:11] Speaker 01: And the board's finding was Pat Noner has merely established the obviousness of using a locking screw in a threaded screw hole [00:13:20] Speaker 01: which is insufficient to show possession of the claim invention. [00:13:24] Speaker 01: That is clearly the correct standard under AREAD that the board applied. [00:13:28] Speaker 01: And the board identified substantial evidence to support that finding. [00:13:32] Speaker 01: The board identified that there was a missing descriptive matter of locking screw in the 2006 application. [00:13:39] Speaker 01: It found there was no evidence of it. [00:13:40] Speaker 01: In fact, it found it was undisputed. [00:13:42] Speaker 01: And that finding was at appendix 73 and 74. [00:13:46] Speaker 01: And then it went on to find that non-locking screws were the conventional [00:13:50] Speaker 01: screws, whereas locking screws were not, and that's in the record at appendix 1417 to 1418 and 4671, and because of that it concluded, correctly, that the 2006 application had no disclosure of locking screws. [00:14:06] Speaker 01: Then it went on to say, well, is there anything else? [00:14:08] Speaker 01: There's a threaded bore, which is the only thing Wright could point to as evidence that it did actually possess the locking screw. [00:14:15] Speaker 01: Is there anything that says that the threaded bore actually does disclose or demonstrate possession of a locking screw? [00:14:21] Speaker 01: And the board found it didn't. [00:14:22] Speaker 01: And it went through substantial evidence. [00:14:24] Speaker 01: It looked outside the corners, four corners of the specification, looked at contemporaneous part, [00:14:30] Speaker 01: took an expert testimony. [00:14:31] Speaker 01: This was a very detailed analysis spanning 15 pages. [00:14:34] Speaker 01: They credited testimony in some instances, they discredited testimony in other instances, and it was a factual finding. [00:14:41] Speaker 01: And there is substantial evidence in there. [00:14:43] Speaker 01: In fact, there's a wealth of substantial evidence to show that it was an obviousness. [00:14:48] Speaker 01: It was obvious to use a locking screw with a threaded bore, but a threaded bore does not demonstrate possession of a locking screw. [00:14:57] Speaker 01: And that distinction between obviousness [00:14:59] Speaker 01: in written description is laid out in AREAD, it's laid out in Power Oasis, and it is a fundamental part of the written description test. [00:15:11] Speaker 01: There's also been talk of whether or not inherency is the correct or incorrect standard, and I just want to be clear, I think correct inherency is the correct standard, but the board held that even if patent owner is correct, that strict necessity is not required, at best patent owner has merely established obviousness. [00:15:29] Speaker 01: So regardless of whether strict necessity is or is not required or enhancing is or is not required, at best, substantial evidence shows the patent owner has only established obviousness and under area that is insufficient to show written description support for the locking screw limitation. [00:15:51] Speaker 01: Wright has also raised grounds with respect to Gruson and Fernandez, which are two of the claims [00:15:58] Speaker 01: Prior references at issue for other claims. [00:16:02] Speaker 01: And from what I hear and write, they keep on saying that there is not substantial evidence to support it. [00:16:07] Speaker 01: But the board walked through the substantial evidence to support an obvious combined analysis. [00:16:12] Speaker 01: This is a very standard analysis that they did. [00:16:15] Speaker 01: They went through, they identified the substantial evidence, they identified evidence in Gruson that there was, is designed to accept locking pins and bone screws. [00:16:26] Speaker 01: They identified evidence in Fernandez that Fernandez has the benefit of variable locking screws. [00:16:32] Speaker 01: And they said that that trade-off is acceptable, that persons of ordinary skill, based on the testimony of the experts, which again, the board is clearly entitled to credit one expert over another. [00:16:44] Speaker 01: They said that that expert was more credible and that there is substantial evidence to support it. [00:16:50] Speaker 01: So the substantial evidence is [00:16:52] Speaker 01: Bruce in itself, it is Fernandez itself, and it is the testimony of the expert, Paragon's expert, Mr. Castaneda. [00:17:01] Speaker 01: That is substantial evidence, and that is sufficient to affirm the board's finding in this matter. [00:17:08] Speaker 01: Lastly, Wright moves on to the K and high note combination. [00:17:13] Speaker 01: And here, I think there is some arguments that there is an alternative holding. [00:17:18] Speaker 01: I want to make sure that the board is clear. [00:17:20] Speaker 01: I think we were clear in our briefing. [00:17:22] Speaker 01: But there is no alternative holding in this case. [00:17:26] Speaker 01: The paragraph that Wright complains of says in the alternative, but then it says, even if we were to accept Wright's argument, and there was a dispute below about the media line in a priority context, even if we were to accept that argument, we would still find the claims invalid. [00:17:41] Speaker 01: But they didn't actually hold the claims invalid based on that argument. [00:17:44] Speaker 01: nor did they make any factual findings based on that. [00:17:47] Speaker 01: It was a hypothetical comment on rights arguments and the inconsistencies, potential inconsistencies, between rights argument in the priority context and rights argument in the obviousness context. [00:18:00] Speaker 01: And that comment, even if you delete that paragraph from the final written decision, the holding still stands on its own. [00:18:07] Speaker 01: It's not an alternative holding at all. [00:18:08] Speaker 01: That's a fiction. [00:18:13] Speaker 01: That also plays into what Wright has alleged to be a claim construction dispute. [00:18:19] Speaker 01: Wright's brief admits in the reply brief at 23 that the board's alternative ruling was not harmless error, as it allowed the board to find obviousness without explaining what the media line of K looks like either before or after modification by Heinel using Paragon's construction. [00:18:39] Speaker 01: That is saying that the claim construction dispute that they're raising, which they didn't raise below, below they said there was no claim construction dispute. [00:18:47] Speaker 01: No claims need to be construed here. [00:18:50] Speaker 01: That is saying that it's based on the alternative holding. [00:18:53] Speaker 01: If there is no alternative holding, that goes away. [00:18:56] Speaker 01: And there is no alternative holding here. [00:18:58] Speaker 01: When you look at what the board actually did for the K&INL, it engaged in a very standard obviousness analysis that is supported by substantial evidence. [00:19:09] Speaker 01: It looked at the disclosures of K and Heinal. [00:19:12] Speaker 01: It found K disclosed pre-contoured plates. [00:19:16] Speaker 01: It found Heinal also disclosed pre-contoured plates. [00:19:20] Speaker 01: It said based on the overlapping disclosure, there'd be motivation to use some of the shapes of Heinal and take those shapes and put it into the shapes of K. And it found that an expert or a person of ordinary skill in the art would have been so motivated to do that. [00:19:38] Speaker 01: and identified the evidence from both Kay Heinel, Paragon's expert, Mr. Castaneda. [00:19:45] Speaker 01: And additionally, it actually relied on Wright's expert's testimony that an S-curve plate was known to repair clavicle fractures as of 2009. [00:19:55] Speaker 01: That is more than substantial evidence on which this court can affirm the board's findings below. [00:20:03] Speaker 01: The other argument that Wright has made is that somehow the board [00:20:07] Speaker 01: did not describe what the combined embodiment of Kay and Heino would look like. [00:20:14] Speaker 01: But the board did that. [00:20:16] Speaker 01: And I would direct the court to appendix 42 to 43. [00:20:19] Speaker 01: It walked through what it would look like. [00:20:22] Speaker 01: It provided an illustration. [00:20:24] Speaker 01: And then it took that illustration and said, on top of that, you would add a few things. [00:20:29] Speaker 01: You would add terminal arms. [00:20:31] Speaker 01: And then when you do that, [00:20:33] Speaker 01: you get a plate that embodies claim one that has the medial line that is required of the claim. [00:20:39] Speaker 01: And in doing so, they looked at the disclosure of Heinal, figure three, and this is on appendix 33 and 34, and they said there's no dispute that Heinal discloses an S-curve medial line. [00:20:51] Speaker 01: And because of that, because you're using the shape of Heinal, when you modify the plate of K, it embodies a medial line or S-curve medial line in the lateral plane. [00:21:01] Speaker 01: That is substantial evidence. [00:21:03] Speaker 01: That is sufficient to affirm the board's findings. [00:21:07] Speaker 01: And unless there are any other questions, I will see the rest of my time. [00:21:11] Speaker 02: Would you focus for a moment on the 443 patent and the media line and the role of the combination of references of Kay and Heindl? [00:21:21] Speaker 01: Certainly. [00:21:22] Speaker 01: So is your eye asking about what the combination of Kay and Heindl would look like and how that media line would appear? [00:21:28] Speaker 01: Is that the question? [00:21:32] Speaker 01: So if you look on page 61 of our brief, the opposition brief, there is a picture. [00:21:44] Speaker 01: And this was the same picture that appeared in the board's final written decision on appendix 41 to 43. [00:21:52] Speaker 01: And there it shows a bone plate that has an S-curve medial line. [00:21:58] Speaker 01: And in Wright's view, Wright has said that their medial line would be [00:22:01] Speaker 01: a series of midpoints along the plate. [00:22:06] Speaker 01: In Paragon's view, it would be a line that divides the plate laterally. [00:22:10] Speaker 01: In either case, when you look at the plate here that's shown on page 61, the line would come in the middle of the plate, and that would be an S-curve. [00:22:23] Speaker 01: And that's what the board found. [00:22:25] Speaker 01: That's the same shape as the plate in Heinel figure three, which is on appendix 33 and 34. [00:22:32] Speaker 01: and the board made the factual finding there, and it's supported by evidence, and Wright hasn't disputed it, that that discloses an S-curve under either party's interpretation of media line. [00:22:43] Speaker 01: And so they took that and said that shape of Heinel's figure three is an S-curve under either party's interpretation. [00:22:50] Speaker 01: This is the shape that looks just like Heinel figure three. [00:22:58] Speaker 01: And based on that, they found that the modified version of K in light of Heinal would have disclosed the claim one or the S-curve medial line in the lateral plane. [00:23:12] Speaker 01: Did that answer your question, or should I go further? [00:23:16] Speaker 02: Well, yes. [00:23:18] Speaker 02: It still leaves, in my mind, a bit of uncertainty because there is a difference as to how do [00:23:28] Speaker 02: focus on the difference between the prior art and at least the picture of what's being patented as to whether there is some entitlement somewhere even if it didn't come out clearly before the board. [00:23:48] Speaker 01: So I don't think if you look on the appendix [00:23:55] Speaker 01: 33 and 34, which is the board's final written decision in the 443 patent. [00:24:02] Speaker 01: It annotates Heino figure three to show the S-curve medial line. [00:24:08] Speaker 01: And it does so by drawing a medial line that comes across the holes of the plate, down the center, and then up. [00:24:16] Speaker 01: And on the same picture that would be depicted on appendix 42, which was reproduced in our brief, [00:24:25] Speaker 01: that same media line drawn in the same way would apply there. [00:24:31] Speaker 01: And so that is what the board's finding was based on, that under either party's interpretation, figure three of Hino has the escrow media line and also the embodiment of Kay and Hino when combined would have the media line as well. [00:24:48] Speaker 01: And I just want to be clear here too, there was no change in position between the petition and the reply. [00:24:54] Speaker 01: In both instances, the petition, and I will give some sites here in Appendix 781, talked about pre-contouring, modifying case pre-contoured plate in view of Heino to arrive at the claim invention. [00:25:09] Speaker 01: And the reply, which is Appendix 1135 to 36, did the exact same thing. [00:25:15] Speaker 01: The position has been consistent throughout. [00:25:17] Speaker 01: There was an argument [00:25:19] Speaker 01: raised by Wright that somehow the reply exceeded the scope of the petition. [00:25:23] Speaker 01: As this court knows, that's reviewed under abuse of discretion, and the board below rejected it. [00:25:27] Speaker 01: And there's no abuse of discretion because we just didn't change the position. [00:25:32] Speaker 01: Unless there are any questions about any of the issues, I'll see you the rest of my time. [00:25:37] Speaker 02: We're all right. [00:25:38] Speaker 02: Thank you. [00:25:38] Speaker 01: Thank you. [00:25:50] Speaker 00: Judge Newman, counsel's argument with respect to the 443 that he just gave to you proves our point. [00:25:58] Speaker 00: If you look at the drawing that they have just identified on page 61 of their brief, that figure is not Kay. [00:26:13] Speaker 00: That figure is not Heinl. [00:26:16] Speaker 00: That figure was not in the petition. [00:26:19] Speaker 00: And our point is [00:26:20] Speaker 00: Even that doesn't describe for how they're interpreting what the medial line is of the combined plate. [00:26:27] Speaker 00: And that's taking figure one from K and bending it. [00:26:32] Speaker 00: So on page 61, it shows they still have not demonstrated to the board below or to this court what the combination looks like. [00:26:41] Speaker 00: Further, on page 58 of our brief, we identify that the board recognized [00:26:49] Speaker 00: that Petitioner was changing its position after we responded to the petition. [00:26:55] Speaker 00: And on page 58 of the blue brief, the board says, based upon Petitioner's reply, we understand Petitioner now to have withdrawn any reliance on Heinel as disclosing an S-curve middle line having an inflection point located between two screw holes of a central trunk portion. [00:27:17] Speaker 00: So the board clearly understood what they said in the petition. [00:27:21] Speaker 00: The board allowed them to change their position and say, oh, we understood, we understand. [00:27:27] Speaker 00: They're withdrawing that argument. [00:27:30] Speaker 00: And in doing so, when counsel points the board to a final written decision, [00:27:45] Speaker 00: In the appendix of page 33, the board, if you look at that figure 3, it's annotated. [00:27:50] Speaker 00: The board annotated that with the board's understanding of what the middle line is by allowing the petitioner to withdraw their understanding. [00:28:01] Speaker 00: If you look at figure 3 as drawn there, in the petition, they said figure 3 indicated where number 5 is, that's where the inflection point is. [00:28:11] Speaker 00: It's a curved line in that point. [00:28:13] Speaker 00: The board says, we're going to allow them to withdraw that. [00:28:16] Speaker 00: And us, the board, they drew this figure three. [00:28:18] Speaker 00: They drew it as a straight line, which is inconsistent with what the petition said. [00:28:23] Speaker 00: And the board let them do that. [00:28:25] Speaker 00: And that's the problem. [00:28:26] Speaker 00: The patent owner shouldn't have to be chasing what the petitioner puts in there that the board then changes on its own. [00:28:34] Speaker 00: In addition, if you need more proof of it, in our brief at page 64, the board [00:28:42] Speaker 00: acknowledges, we conclude that while the petition could have more clearly articulated petitioner's position on obviousness, the clarifications provided in the reply properly respond to objections raised in the patent owner response without improperly exceeding the scope of the petition. [00:29:01] Speaker 00: That's improper. [00:29:03] Speaker 00: Patent owner is entitled to know exactly what the ground is that they're fighting. [00:29:09] Speaker 00: And by the board allowing them to change it and the board allowing them to put evidence on in their petition, like the figure they showed you, which is neither HINAL nor K, that's improper. [00:29:19] Speaker 00: And we think their argument pointed out those discrepancies between their petition and where the board ended up. [00:29:25] Speaker 02: But you're not saying that Wright didn't have the opportunity to argue that point before the board, just because the petition wasn't so precise? [00:29:39] Speaker 00: The objections that the board identifies, that they properly respond to our objections, our objections were, you didn't define what the medial line is, so we don't know what that is. [00:29:50] Speaker 00: That's not an objection. [00:29:51] Speaker 00: We're saying that's a failure of proof. [00:29:53] Speaker 00: And they don't get to beef that up like they tried to do in their reply. [00:29:58] Speaker 00: If you look at what the patent owner did, between pages 58 and 62 of our brief, we cut and put for the board the analysis that our expert did to determine what a medial line is and how it looks like in those plates. [00:30:12] Speaker 00: There's no corresponding evidence from the other side what the medial line is or how it's applied. [00:30:17] Speaker 00: They just said, don't listen to evidence from their expert. [00:30:20] Speaker 00: But they never described [00:30:22] Speaker 00: in that detail. [00:30:23] Speaker 00: And without that detail, you can't determine whether the combination has the S-curve limitation or not. [00:30:30] Speaker 00: And that's the problem. [00:30:31] Speaker 00: At the end of the day, if you look at the final decision, there's no description of what the modified figure 1 of K looks like after it's modified with Heidel. [00:30:43] Speaker 00: And we think that's a pure failure proof. [00:30:45] Speaker 00: And the board did not require them to point out the evidence in the petition. [00:30:51] Speaker 00: And we think that's a failure. [00:30:55] Speaker 00: If there's no more questions on 443, I'd like to move on to a few things with the 252 and the 253. [00:31:02] Speaker 00: Make no mistake that we think the board used the wrong standard under the written description law. [00:31:10] Speaker 00: They said there's no dispute that the 2006 application does not actually disclose a locking suite. [00:31:17] Speaker 00: We dispute that. [00:31:18] Speaker 00: We've disputed that all along. [00:31:20] Speaker 00: There's no dispute that the 2006 application does not use the word locking screw. [00:31:26] Speaker 00: There's no dispute it does not expressly use the word non-locking screw. [00:31:30] Speaker 00: It just talks about screw and screw holes. [00:31:35] Speaker 00: It does have one figure, which a person of ordinary skill and the art would understand to be a non-locking screw. [00:31:41] Speaker 00: But that's no dispute that that term is not expressly disclosed. [00:31:45] Speaker 00: We think in this part, in this simple, not complicated, predictable part, when you disclose a bone plate that can have a locking screw hole or a non-locking screw hole, that is a disclosure. [00:31:58] Speaker 00: That's an actual disclosure of a locking screw hole. [00:32:01] Speaker 00: And we think the testimony expert backs that up. [00:32:04] Speaker 00: So there's no reason for the board, based upon there being no dispute, there was a dispute. [00:32:10] Speaker 00: There's no reason for the board to go to inherency. [00:32:12] Speaker 00: This is not an inherency issue. [00:32:14] Speaker 00: Inherency is directed to where you have a claim limit that has some undisclosed properties. [00:32:21] Speaker 00: But people know, a person of ordinary skill and the art knows, that element always has that property. [00:32:28] Speaker 00: It's necessarily present. [00:32:29] Speaker 00: That's not one of these cases. [00:32:30] Speaker 00: We're not in herency. [00:32:31] Speaker 00: We're into this actually discloses to a person of ordinary skill and the art. [00:32:35] Speaker 00: It reasonably conveys to them a locking screw. [00:32:39] Speaker 00: And then the board's discussion of obviousness. [00:32:45] Speaker 00: The key in your pocket to your front door is not an obvious to use it in your doorknob, right? [00:32:53] Speaker 00: The key is intended to be used in your doorknob. [00:32:56] Speaker 00: It's not an obvious use. [00:32:58] Speaker 00: It's the same thing we have here. [00:33:00] Speaker 00: The use of a locking screw in a threaded screw hole is not an obvious use. [00:33:05] Speaker 00: It's a direct teaching. [00:33:07] Speaker 00: One of ordinary skill in the art knows when he sees a screw hole that he can use a screw in it, particularly when it's for a bone plate [00:33:14] Speaker 00: that's affixed to a bone using screws. [00:33:18] Speaker 00: That locking screw hole has a screw going through it to lock it to the bone. [00:33:21] Speaker 00: The fact that I can also take a bending device, which is threaded so I don't destroy my screw hole, can be used to bend a plate and then take the device out and put a locking screw in there, does not remove from the knowledge or person of ordinary skill in the art that that locking screw is for a screw hole. [00:33:42] Speaker 00: And the boards [00:33:44] Speaker 00: The board's factual finding that a person of ordinary skill and error understood that one purpose of the screw hole is a locking screw is sufficient in this art, in this technology. [00:33:58] Speaker 00: That's ridiculous. [00:34:01] Speaker 00: With respect to gruesome, they cited the law about those trade-offs and benefits. [00:34:07] Speaker 00: The trade-off you have between the benefits of two references, that does not trump [00:34:14] Speaker 00: if the combination makes the combination inoperable for its intended purpose. [00:34:21] Speaker 00: And in gruesome, the purpose was to eliminate the scrub necrosis. [00:34:26] Speaker 00: So to use a screw that will increase the instance of scrub necrosis makes gruesome inoperable for its purpose. [00:34:33] Speaker 00: It's not a trade-off. [00:34:33] Speaker 00: It's not a trade-off law where you have some benefits. [00:34:35] Speaker 00: This is inoperable. [00:34:37] Speaker 00: And under the Gordon line of cases, then there's no motivation to come up. [00:34:43] Speaker 00: OK. [00:34:43] Speaker 00: Are there any questions? [00:34:46] Speaker 02: I think we tried to understand the issues. [00:34:53] Speaker 02: Thanks to both counsel. [00:34:54] Speaker 02: The case is taken under submission. [00:34:57] Speaker 00: Thank you, Your Honor.