[00:00:00] Speaker 01:
We'll hear argument next in number 20-2245, Alpha Tech Holdings, Inc.

[00:00:06] Speaker 01:
versus Invasive, Inc.

[00:00:08] Speaker 01:
with wellness care.

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

[00:00:11] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:13] Speaker 03:
I'd like to focus today on three issues.

[00:00:17] Speaker 03:
First, the application of collateral estoppelings, the Claim 18 of the 3-3-4 patents.

[00:00:23] Speaker 03:
and obviousness of using four markers in Claim 16 of the 3-3-4 patent, and finally, the construction of longitudinal length in the 1-5-6 patent.

[00:00:34] Speaker 03:
I'd like to start first with Claim 18.

[00:00:37] Speaker 01:
In New Basin 1... I'm having a very difficult time understanding what's going on here.

[00:00:43] Speaker 01:
I've read the briefs a couple of times, and the petition and the board's decision

[00:00:53] Speaker 01:
It seems to me that your position now is that the earlier decision established that Claim 1 is obvious and that Claim 18 is exactly the same from Claim 1.

[00:01:06] Speaker 01:
But I'm not sure that you made that argument to the Board in your petition.

[00:01:13] Speaker 01:
You seem there to be saying that the Palau L'Essable was not the

[00:01:20] Speaker 01:
invalidity of claim one so much as it was that the dimensional limitation was satisfied.

[00:01:29] Speaker 01:
And could you help me on that?

[00:01:33] Speaker 01:
And in that connection, I don't, I must say, I don't understand the argument is putting aside cloud, stop the lie.

[00:01:44] Speaker 01:
There's a problem with combining

[00:01:49] Speaker 01:
these two references.

[00:01:53] Speaker 03:
Thank you, Your Honor.

[00:01:54] Speaker 01:
The connection seems to me not to be directed to the claim language.

[00:02:01] Speaker 01:
Go ahead.

[00:02:02] Speaker 03:
Thank you, Your Honor.

[00:02:04] Speaker 03:
So we did raise the issue in our petition that Claim 18 was not patentably distinct from Claim 1.

[00:02:12] Speaker 03:
We expressly relied for Claim 18

[00:02:16] Speaker 03:
on a combination of Michelson and Frey, further in view of Barry for the purpose of showing that a person of ordinary skill in the art would know the human anatomy.

[00:02:29] Speaker 03:
In connection with claim 18, we expressly relied on this court's holding in evasive one that the combination of Frey and Michelson would have been obvious.

[00:02:43] Speaker 03:
Um in new base of one this court stated that the only limitation and the three three four patents That that addressed comparing the length to the width.

[00:02:54] Speaker 02:
I'm sorry.

[00:02:55] Speaker 02:
Let me try to accelerate the conversation here my my concern here is with the petition and the petition theory for claim 18 and as you know, the petitioner is the architect for uh

[00:03:12] Speaker 02:
the conception of how to challenge and attack the validity of a patent claim.

[00:03:17] Speaker 02:
And when I read your petition at A274 to 276, it introduces the idea that, yes, Fray and Michelson rendered claim one obvious in light of new base of one.

[00:03:35] Speaker 02:
But then almost immediately, you step away from that starting premise

[00:03:42] Speaker 02:
and start talking about a rationale for why one would combine teachings of Michelson with Fray.

[00:03:52] Speaker 02:
And then you introduce the theory that you would want a narrower implant in Fray so that you could introduce individual narrower pieces into the patient one at a time and then ultimately install a completed implant

[00:04:11] Speaker 02:
inside the patient after combining all the narrower pieces.

[00:04:17] Speaker 02:
And as you know, the board went at great length in its decision to explain why that was a complete misunderstanding of Michelson.

[00:04:25] Speaker 02:
And my understanding now is in your briefing, you're not at all disputing that finding by the board, but you are now here at the Federal Circuit

[00:04:37] Speaker 02:
raising a difference theory, which is really rooted in collateral estoppel.

[00:04:42] Speaker 02:
And I'm concerned that you did not raise that.

[00:04:45] Speaker 02:
You had the choice in your petition to do with claim 18 exactly what you did with claims six and nine, which was to use collateral estoppel of claim one as the launch point, and then just explain why the references teach, you know, the medial support or the second aperture and things like that.

[00:05:06] Speaker 02:
That would be the end of it.

[00:05:07] Speaker 02:
But for Claim 18, the structure of your argument looks strikingly different.

[00:05:15] Speaker 02:
Basically, you hit the restart button and start it all over again with, from the foundation of trying to justify why a skilled artist would combine Michael Smith price.

[00:05:29] Speaker 02:
And so number one, I do not understand why when you had the choice to put, you know, to use a football analogy,

[00:05:35] Speaker 02:
You had the choice to put the ball on the one yard line, but instead you chose to put it back on your own 20 yard line and start from scratch.

[00:05:45] Speaker 02:
So that's my concern about your argument of the claim 18 in your blue brief.

[00:05:51] Speaker 02:
It's a theory could have really developed and raised and forced the board to confront, but I see a completely different argument that you made and the board thoroughly addressed it.

[00:06:02] Speaker 02:
And now I'm afraid it's too late to go back to this collateral estoppel theory.

[00:06:08] Speaker 02:
And so I'd be happy to hear your response to all of this.

[00:06:12] Speaker 03:
Thank you, Your Honor.

[00:06:13] Speaker 03:
So we expressly raise this court's opinion and evasive one as the motivation to combine Brian Mickelson in our petition.

[00:06:22] Speaker 03:
That's at Appendix 263.

[00:06:25] Speaker 01:
OK, but that's a different question.

[00:06:27] Speaker 01:
I mean, I have the same concerns as Judge Chen, except

[00:06:31] Speaker 01:
With one tweak, I understand that in the petition you relied on the original decision as establishing the Nicholson Shud, the dimensional limitations.

[00:06:44] Speaker 01:
But then in other respects, you start from scratch.

[00:06:48] Speaker 01:
In other words, you limit the collateral estoppel argument to that one feature of it, rather than saying, okay, claim one is invalid, and now we only need to look at the additional language in claim 18.

[00:07:01] Speaker 03:
So our petition did expressly focus on the additional language of Claim 18.

[00:07:08] Speaker 03:
In the petition, we specified that we were relying on collateral estoppel for all of the limitations of Claim 1, and that we would further focus on our discussion on the additional limitations of Claim 18.

[00:07:21] Speaker 03:
We put that at Appendix 266.

[00:07:24] Speaker 03:
What we focused on, so we started with the same

[00:07:30] Speaker 03:
two things that the Federal Circuit relied on for finding all the limitations of Claim 1.

[00:07:36] Speaker 03:
So, to be clear, Your Honor, the Board found that Claim 18, Board upheld Claim 18 entirely on a limitation found in Claim 1, the long and narrow limitation, which we extensively discussed in our petition with previously decided a new base of 1.

[00:07:56] Speaker 03:
What we were doing for the additional dimensional limitations of Claim 18 was relying on... Okay, but that's where the confusion arises.

[00:08:04] Speaker 01:
I mean, yes, you certainly relied on Claddle-Lestapel with a dimensional limit for a answer to the dimensional limitations.

[00:08:14] Speaker 01:
The question is, what about other limitations that need to be satisfied by the combination of Middleton and Bride?

[00:08:23] Speaker 03:
We did discuss those additional limitations that need to be satisfied by the combination of Michelson and Frye in view of Barry for claymating.

[00:08:32] Speaker 03:
We expressly discussed the claymating as particular dimensional limitations.

[00:08:37] Speaker 03:
It requires a width of 18 millimeters and at least the length of 45.

[00:08:42] Speaker 03:
Our petition focused on those additional limitations.

[00:08:45] Speaker 03:
The board's decision, however, did not reach any of our evidence on the additional limitations of claymating.

[00:08:52] Speaker 03:
because it's focused entirely on whether Michelson taught a single law.

[00:08:57] Speaker 02:
Can you tell us why you went through the full-blown motivation to combine Michelson and Fray at 274, 275, and then also at 263, 264?

[00:09:11] Speaker 02:
I'm not talking about the motivation to combine Barry.

[00:09:15] Speaker 02:
I understand you had to do that.

[00:09:17] Speaker 02:
I'm just asking about why you were

[00:09:22] Speaker 02:
Arguing to the board all of this about the motivation to combine Frey and Michelson based on I think what we would all now acknowledge is a misreading of Michelson.

[00:09:37] Speaker 03:
So we focused on restating what the motivation to combine was of Michelson and Frey because we then had to take the next step of making that combination of the long and narrow as taught by Michelson and Frey with Barry.

[00:09:51] Speaker 02:
How about your reply?

[00:09:53] Speaker 02:
What did you say in your reply?

[00:09:54] Speaker 02:
Did your reply say, well, the patent owner in its response is saying all of this discussion about why we're misreading Michelson, but it doesn't even matter because we're actually relying in addition on collateral estoppel.

[00:10:12] Speaker 02:
And so we don't even need to justify an explanation for combining Michelson and Frye.

[00:10:20] Speaker 02:
Did your reply say anything like that?

[00:10:22] Speaker 03:
Our reply expressly addressed the collateral estoppel issue, and we even further addressed... What page is that at?

[00:10:30] Speaker 01:
What page is it in?

[00:10:33] Speaker 02:
I don't think the full reply... I don't think it's in the JA.

[00:10:37] Speaker 02:
I think you have maybe a couple pages to your reply, and none of it has anything to do with Claim 18, as I understand it.

[00:10:44] Speaker 03:
Yes, I don't think this is the sole reply in the Joint Appendix.

[00:10:50] Speaker 03:
This was also expressly raised at the oral argument.

[00:10:53] Speaker 03:
At the oral argument, I stated to the panel, this issue has already been decided of combining Michelson and Frey.

[00:11:03] Speaker 03:
That issue has already been decided.

[00:11:05] Speaker 03:
And the Board's decision was directly contrary not only to this Court's opinion, but to the expressed description in Michelson.

[00:11:14] Speaker 03:
that Figure 19 is a plurality of spinal implants.

[00:11:19] Speaker 03:
Our argument was independent of whether you assemble the implants for or after insertion.

[00:11:26] Speaker 03:
Michelson says that Figure 19 is a combination of spinal implants.

[00:11:30] Speaker 03:
When the board, when Nubase raised this issue in its response, we addressed that issue in reply by focusing on, again, what the exact same portions of Michelson

[00:11:44] Speaker 03:
that this court relied on in Nubasive 1?

[00:11:48] Speaker 02:
If there is something in the reply that is not in the JA that expressly talks about what happened in Nubasive 1, in which you, the petitioner, don't even need to do a justification for combining Michelson and Frey, because those two references have already been deemed

[00:12:13] Speaker 02:
to have a motivation to combine their teachings, that would be useful to see in the letter today.

[00:12:22] Speaker 02:
But right now, based on what I see in the JA, to be honest, in my view, I don't see any argument like that in either your petition or your reply.

[00:12:34] Speaker 02:
If you argued the oral argument, maybe that's too late.

[00:12:38] Speaker 02:
I don't know in front of the board.

[00:12:39] Speaker 02:
We certainly don't have the transcript

[00:12:41] Speaker 02:
of the board hearing in the JA either.

[00:12:45] Speaker 02:
But right now, are you disputing the board's very lengthy summary of what all the arguments were presented?

[00:12:54] Speaker 02:
As you can see, inside this board's decision, this was clearly the main event to the board, and they discussed this issue of Claim 18 at length, summarizing in seemingly exhaustive detail what each party was arguing

[00:13:11] Speaker 02:
in their petition, the reply, the response, the sir reply, the other side sir reply.

[00:13:17] Speaker 02:
So, and there's nothing in any of that summary that suggests that you are, you raised the argument below the argument that you're raising now on appeal.

[00:13:30] Speaker 03:
I think that the board's decision does reflect that we raised the argument below because the board in fact applied collateral estoppel for claim one to claim six through nine.

[00:13:40] Speaker 02:
That's right, because when we look at your petition, we can see very clearly that you did use this powerful tool of collateral estoppel in making your case for Claim 6, 7, 8, and 9 in a way that, again, as I said before, for Claim 18, there was a strikingly different approach for whatever reason.

[00:14:02] Speaker 03:
I can find those pages of the reply for you.

[00:14:05] Speaker 01:
What about Appendix 266?

[00:14:13] Speaker 03:
That is the page in the very page in the petition that I referred to earlier, Your Honor.

[00:14:20] Speaker 03:
Thank you.

[00:14:20] Speaker 03:
That is where we mostly stated in the petition that we were relying on collateral to stop for Claim 18.

[00:14:28] Speaker 03:
And that would be based on Claim 1.

[00:14:34] Speaker 03:
So we raised this from the very beginning in the petition.

[00:14:38] Speaker 03:
When the arguments were raised in reply, we referenced back to it, but we also addressed the substance of the arguments that were raised.

[00:14:45] Speaker 03:
And in doing so, we relied again on evasive one and the teachings in evasive one.

[00:14:49] Speaker 02:
So I guess in your view, the board was on notice of this theory of attacking claim 18, and they just missed the boat.

[00:15:01] Speaker 02:
They should have addressed this.

[00:15:03] Speaker 02:
They didn't, they addressed something else that you argued at great length, but they failed in their responsibility to confront this one issue that they were on notice of.

[00:15:16] Speaker 03:
They did, Your Honor.

[00:15:18] Speaker 03:
And I think this is clear when you look at the Board's decision when the Board summarizes before it gets to Claim 18, the prior record, and it specifically states

[00:15:28] Speaker 03:
that in Nubasive 1, there were certain arguments that Nubasive had raised, but the Federal Circuit had noted that it wasn't the board.

[00:15:36] Speaker 03:
The board was not at fault for not addressing those arguments at that time because Nubasive had not raised them.

[00:15:41] Speaker 03:
I think there was some confusion then that Nubasive was permitted to re-raise them now.

[00:15:46] Speaker 03:
But the issue is the board was bound to follow this course precedent.

[00:15:51] Speaker 03:
and collateral estoppel applies, and we extensively argued collateral estoppel, and we did so for not just Claim 639, but Claim 18 as well.

[00:16:00] Speaker 03:
We extensively argued that.

[00:16:02] Speaker 01:
And that's- We argued it at the oral hearing?

[00:16:06] Speaker 01:
Where?

[00:16:06] Speaker 03:
No, we argued it extensively.

[00:16:08] Speaker 03:
We argued it in our petition.

[00:16:10] Speaker 03:
We argued collateral estoppel applies extensively in our reply brief.

[00:16:15] Speaker 01:
Okay.

[00:16:17] Speaker 01:
I think it would be helpful for us to see that.

[00:16:20] Speaker 01:
Is that available on pace or whatever?

[00:16:23] Speaker 03:
Yes, it is.

[00:16:24] Speaker 03:
Okay.

[00:16:25] Speaker 01:
All right.

[00:16:27] Speaker 01:
I think we're out of time and most of my colleagues have further questions here.

[00:16:32] Speaker 01:
We'll give you some little bubble time.

[00:16:36] Speaker 01:
We'll figure that out when the time comes.

[00:16:39] Speaker 00:
Mr. Rosado?

[00:16:43] Speaker 00:
Thank you, Your Honor.

[00:16:43] Speaker 00:
And, you know, I guess I'll start by saying

[00:16:50] Speaker 00:
I think the court's recognizing this, but for many of the issues that are raised on appeal, the board did provide a very extensive detailed analysis of the prior and the board rejected.

[00:17:04] Speaker 00:
ALFDEC's challenges, you know, largely on the basis that the stated priority simply didn't say what ALFDEC claimed it did.

[00:17:10] Speaker 00:
And that's certainly true for Claim 18.

[00:17:14] Speaker 00:
We didn't get to the marker configuration issue, but that's true there.

[00:17:19] Speaker 00:
That really had nothing to do with it, but really was an interpretation of the CHELS reference.

[00:17:26] Speaker 01:
You heard our concern about whether this flat-oil sample issue

[00:17:31] Speaker 01:
was raised in the petition and the reply.

[00:17:35] Speaker 01:
And so what about page 266 and then later the discussion of the claim language of a claim 18?

[00:17:43] Speaker 01:
Why isn't that sufficient?

[00:17:46] Speaker 00:
So I don't think that that was their argument, that they were pushing hard a collateral estoppel-based argument.

[00:17:53] Speaker 00:
And the reason I don't think they... They don't have to press it hard.

[00:17:56] Speaker 01:
They just have to press it.

[00:17:58] Speaker 01:
There's no question here that all sorts of other stuff is directed to issues that aren't before us now.

[00:18:08] Speaker 01:
The question is whether the petition sufficiently raised the collateral estoppel argument that they're pushing now.

[00:18:15] Speaker 01:
And I'm asking particularly about page 266 and some of the later pages.

[00:18:21] Speaker 00:
Right.

[00:18:22] Speaker 00:
I think that really focuses on what's to come with the defendant's claim.

[00:18:27] Speaker 00:
But I can tell you why I believe they took on this extensive argument for a rationale about Michelson.

[00:18:35] Speaker 00:
And I think the reason they did that is... That's not the question.

[00:18:39] Speaker 01:
The question is, did they raise the collateral estoppel argument in the petition and elaborate it in the reply sufficient so that the board should have addressed it?

[00:18:48] Speaker 00:
Not in the way that they're trying to use it here.

[00:18:50] Speaker 00:
Okay, I think they, they certainly mentioned collateral stopper, but when it came to claim 18, the problem they had is that new base of one address claim 18 board address claim 18 and view of Michael.

[00:19:05] Speaker 00:
And the board found that Michelson and Frey don't give you claim 18.

[00:19:11] Speaker 00:
The board addressed that specifically.

[00:19:13] Speaker 00:
It's even noted in the decision here.

[00:19:16] Speaker 00:
The board here.

[00:19:17] Speaker 02:
But Alpha Tech wasn't stopped by that conclusion because in new base of one, the petitioner there, Medtronic, had dropped out on appeal.

[00:19:30] Speaker 02:
So there wasn't, in fact, even an appeal on claim 18.

[00:19:35] Speaker 02:
in that case, right?

[00:19:36] Speaker 02:
I mean, I agree with you.

[00:19:37] Speaker 02:
The patent board concluded that Medtronic, for whatever reason, fell down in its burden of trying to prove Claim 18 unpatentable, but that doesn't mean that AlphaTech was somehow bound by that.

[00:19:53] Speaker 02:
I think the decision went beyond that, and I'm not suggesting.

[00:19:56] Speaker 02:
Well, okay, let's put this to the side about what happened on Claim 18 in new basic law.

[00:20:02] Speaker 02:
Could you get back to Judge Dyke's point, which is that at A266, the petition makes a case for why collateral estoppel should apply as to Claim 1.

[00:20:15] Speaker 02:
And then at A274, when it begins its discussion of Claim 18, in the very first sentence, it invokes the collateral estoppel argument that it presented at A266.

[00:20:30] Speaker 02:
And so, again, following up on Judge Dyke's point, maybe one way of reading the situation is that they use collateral estoppel, and then in addition or in the alternative, they also do an independent explanation of why one would combine Frey and Michael.

[00:20:52] Speaker 02:
And so, really, all that

[00:20:56] Speaker 02:
needed is just collateral estoppel plus the very reference, the tertiary reference.

[00:21:02] Speaker 00:
I don't think that would work.

[00:21:03] Speaker 00:
But I also don't think that if they're now pointing to new base of one and saying this, this saves the day for us, I don't think we can put new base of one aside in its entirety.

[00:21:14] Speaker 00:
And in new base of one, as the explained here, the board looked at fry and Michaelson and made the determination.

[00:21:21] Speaker 00:
It wasn't just it wasn't just medtronic failure.

[00:21:24] Speaker 00:
They looked at Michelson and said, it doesn't give us a 40-millimeter long, 18-millimeter wide implant.

[00:21:31] Speaker 00:
We find no rational basis to get there, right?

[00:21:34] Speaker 01:
So in the same way they're pointing to... Just accept the idea that we decide this issue about claim 18 in the earlier innovation decision.

[00:21:47] Speaker 01:
Just accept that for a moment.

[00:21:49] Speaker 01:
Do you agree that in the petition and elaborated in the reply,

[00:21:54] Speaker 01:
that they raised the collateral sample point saying that the invalidity of claim one establishes that all of those arguments about claim one have been resolved and that we only need to be concerned about the additional language of claim 18.

[00:22:15] Speaker 01:
Do you agree that they raised that issue?

[00:22:18] Speaker 00:
I don't agree that they raised it in the way they're trying to use the

[00:22:21] Speaker 00:
I agree that they said we can't revisit claim one, and I would actually agree with that on the point of law.

[00:22:28] Speaker 01:
We're not trying to recapture claim one.

[00:22:30] Speaker 01:
And then they go on to say, so the only question is about the additional language of claim 18.

[00:22:36] Speaker 00:
And when it gets to that additional language, they acknowledge that nobody ever has a rationale to get to 18 millimeters, and that's addressed in new base of one.

[00:22:46] Speaker 01:
But that's not an issue that the board has addressed yet.

[00:22:51] Speaker 00:
A new base of one, they did address that.

[00:22:53] Speaker 00:
They addressed it directly and said, we don't find a rationale to get to 18 millimeters.

[00:22:58] Speaker 01:
We're asking you to forget about that.

[00:23:00] Speaker 01:
Yeah.

[00:23:03] Speaker 01:
Is the cloud or sample issue in the petition, the board should have said something about it and it didn't.

[00:23:13] Speaker 00:
I think the board understood their argument as providing their own new rationale.

[00:23:20] Speaker 00:
based on the sequential insertion of pieces that they alleged was in Michelson and wasn't.

[00:23:26] Speaker 00:
I think the board understood that was their argument.

[00:23:29] Speaker 00:
And they never disputed that.

[00:23:30] Speaker 00:
That was their argument.

[00:23:32] Speaker 02:
Mr. Rosano, did the petitioner in there, do you have their reply in front of you by any chance?

[00:23:38] Speaker 00:
I don't, Your Honor.

[00:23:39] Speaker 00:
It's not in the appendix.

[00:23:40] Speaker 00:
I can try to put it up.

[00:23:42] Speaker 00:
But even if they raise this in the reply, we all know that that's not sufficient.

[00:23:48] Speaker 00:
They can't put the brand new theory

[00:23:50] Speaker 00:
at the reply stage and they didn't see it.

[00:23:58] Speaker 00:
If there are any further questions on CLEAN 18?

[00:24:03] Speaker 01:
You can, I think you can go on to your cross field.

[00:24:07] Speaker 00:
Yeah, I want to get to the cross field.

[00:24:11] Speaker 00:
But our main problem is with the finding on cross field and that is

[00:24:19] Speaker 00:
It's the application of lateral stop illness in this instance in the way ALPHA-TEC argued for the application of the way the board applies.

[00:24:30] Speaker 00:
The problem is ALPHA-TEC didn't address the limitations of claim one that was imported into the dependent claim.

[00:24:39] Speaker 00:
It urged those to be ignored and then urged obviousness if the dependent claim limitations, the additional limitations,

[00:24:48] Speaker 00:
could be found.

[00:24:49] Speaker 00:
The problem with what they were presenting is that ignoring the limitations of the claim, one that was imported into the clinic plan, I think disguised the fact that it was no longer, that it was changing the analysis and it was no longer advancing the same obviousness analysis or theory that Mitronic had presented.

[00:25:15] Speaker 00:
And I would draw

[00:25:17] Speaker 00:
reference the red brief at page 58 that's out.

[00:25:22] Speaker 00:
It illustrates what happened here is Medtronic had proposed one mapping to begin and ALSTEC had skipped over that and then proposed their new remapping implementation.

[00:25:38] Speaker 00:
So you end up with two different obviousness theories, one presented by Medtronic and a different claim mapping presented

[00:25:47] Speaker 00:
by Alpha Tech, and the problem with their remapping is twofold.

[00:25:54] Speaker 00:
One, it doesn't comport with this notion that state-of-the-art benefit of federal self-reporting for the nation and obviously for the state of Kansas.

[00:26:08] Speaker 00:
The second, the re-mapping- You're breaking up some, your audio is breaking up.

[00:26:13] Speaker 00:
I hear a lot of background noise, Your Honor.

[00:26:16] Speaker 01:
where it's coming from, but... You can get a little closer, as you did just now.

[00:26:21] Speaker 01:
Okay.

[00:26:25] Speaker 00:
Here's a close-up.

[00:26:28] Speaker 00:
So, you know, I was saying that one of the main problems we have with the application of collateral estoppel in this instance is that, you know, it essentially amounted to, you know, two different obviousness theories being presented, the one by Medtronic

[00:26:45] Speaker 00:
And then a change in the invalidity analysis to a remapping of the claims to the ARC in a different manner once it got to the additional limitations of the dependent claim.

[00:26:58] Speaker 00:
But if we look at the remapping, and I indicated, the court may or may not have heard me, this is illustrated in the red brief at page 58.

[00:27:06] Speaker 00:
It illustrates the mapping that Medstronic had provided and then the difference

[00:27:13] Speaker 00:
in validity analysis and claim mapping that AlphaTech has pivoted to midstream in addressing dependent claims.

[00:27:26] Speaker 00:
So, you have this sort of, you know, in these two incompatible claim mapping theories, you know, where AlphaTech starts with Medtronic and asks the board to ignore the limitations that were imported from claim one,

[00:27:42] Speaker 00:
and then pivot to a complete different remapping of the prior art to a different obviousness theory.

[00:27:50] Speaker 00:
And this presents a couple of problems.

[00:27:52] Speaker 00:
One, they're arguing that they get the benefit of collateral stuff for their theory, but they disguise the fact that they're presenting a different mapping, a different obviousness theory.

[00:28:04] Speaker 00:
And they also discuss the fact that their different mapping doesn't capture all the claims that are imported

[00:28:10] Speaker 00:
into the dependent plane.

[00:28:13] Speaker 00:
And we can see that with their change in mapping to implant 1400, right?

[00:28:19] Speaker 00:
As illustrated there in page 50 to the red brief, Medtronic had argued that the middle structure, 1422, was the claimed first fusion aperture of the independent plane.

[00:28:34] Speaker 00:
When Alphatech pivoted, their obvious

[00:28:37] Speaker 00:
They remapped it, but they remapped their argument to now identify this left lobe 1418 as the first fusion aperture, right?

[00:28:46] Speaker 00:
And they had to do this because they couldn't pick up the dependent claims with the original theory.

[00:28:53] Speaker 00:
But it ends up disjointing their theory to one that no longer works.

[00:28:58] Speaker 00:
And that, again, is illustrated with what they're calling the first fusion aperture.

[00:29:03] Speaker 00:
They're pointing to an object that's at a 45-degree angle,

[00:29:07] Speaker 00:
And it's not, it doesn't meet the limitation imported from claim one, which requires the first fusion aperture to be generally parallel to the longitudinal length of the implant, right?

[00:29:20] Speaker 00:
So in ignoring, in urging the port to completely ignore claim one, they disguise what they're doing as changing to a different, obvious analysis, and that's a problem.

[00:29:36] Speaker 00:
And with that, if I can, I would like to make one comment on the marker claim, but I'm happy to rebuttal because the council didn't have a chance to address that in their opening.

[00:29:55] Speaker 02:
Quick question.

[00:29:55] Speaker 02:
The other side, I believe, is saying you can get some additional beneficial information

[00:30:05] Speaker 00:
adding a fourth marker.

[00:30:06] Speaker 00:
I think they advance that conclusory argument.

[00:30:12] Speaker 00:
That was one of their arguments that was rejected by the board.

[00:30:15] Speaker 00:
The primary argument that they advanced was pointing to the Pacelli reference and claiming that the Pacelli reference gave you the two markers in the medial plan configuration.

[00:30:27] Speaker 00:
The board looked at that, analyzed the scope and content belly, and they disagreed with them.

[00:30:33] Speaker 00:
They told us why they specifically pointed to paragraph 541, the celly and explained that the celly is saying those two spikes 24 that pointing to are not in the medium plane of the implant.

[00:30:50] Speaker 00:
The reference is expressly telling us.

[00:30:53] Speaker 00:
It has a completely different configuration.

[00:30:55] Speaker 00:
It's stating that they're to be disposed on the left and right side of the statical mid-plane of the patient, which is the anatomical reference plane that dissects front to back through the nose.

[00:31:06] Speaker 00:
So the board looked at Alphatec's argument that Vicelli allegedly teaches this configuration and found that Vicelli does not teach the configuration.

[00:31:16] Speaker 00:
It instructs different configurations.

[00:31:19] Speaker 00:
And that if one were to import that configuration into

[00:31:23] Speaker 00:
the implant is proposed, it doesn't give you what's claimed.

[00:31:26] Speaker 00:
Alpha Tech doesn't grapple with the seal.

[00:31:29] Speaker 00:
They argue the claim constructs that never addresses the board's key findings.

[00:31:35] Speaker 00:
At the end of the day, the reference just doesn't teach what they said it does.

[00:31:39] Speaker 00:
With regard to FRI, you're correct, Your Honor.

[00:31:42] Speaker 00:
They argued, hey, you can get additional information.

[00:31:46] Speaker 00:
The board went through and analyzed that argument and said FRI

[00:31:50] Speaker 00:
already gives you a marker configuration that gives you everything you need, and it says so in the reference, about proper placement and feeding of the implant.

[00:32:01] Speaker 00:
And ALSTEC's argument about more markers was not only was conclusory, but it was in conflict, the testimony to the expert, like Dr. Youssef, who explained why if you start adding additional markers, you're actually

[00:32:16] Speaker 00:
starting to destroy the information you can get from an x-ray.

[00:32:20] Speaker 00:
The board credited experts, the content of prior reference, and expert testimony to come to that conclusion.

[00:32:27] Speaker 00:
That's the angel of health that doesn't demonstrate.

[00:32:32] Speaker 01:
Okay, I think we're out of time.

[00:32:33] Speaker 01:
Lessons from the colleagues have questions.

[00:32:36] Speaker 01:
Not hearing any.

[00:32:39] Speaker 01:
So, Ms.

[00:32:41] Speaker 01:
Pocomisera,

[00:32:44] Speaker 01:
Let's give you four minutes to have your rebuttal on the main appeal to address the cross bill.

[00:32:54] Speaker 03:
Thank you, Your Honor.

[00:32:55] Speaker 03:
As to the original questions that Your Honor was asking regarding the reply brief, I will submit a letter.

[00:33:03] Speaker 03:
We extensively discussed the collateral estoppel for Claim 18 again in the reply brief, and those pages are not all in the appendix, but I will provide that.

[00:33:14] Speaker 02:
I happen to have a copy of your reply right now.

[00:33:17] Speaker 02:
Can you just point me to a page?

[00:33:20] Speaker 03:
Sure.

[00:33:20] Speaker 03:
So, Your Honor, start at page one.

[00:33:26] Speaker 03:
The first line references this court's prior decision.

[00:33:41] Speaker 02:
I'm talking about the application of collateral estoppel in the context of Claim 18 that recites the additional limitation of a width that is 18 millimeters.

[00:33:53] Speaker 03:
And that starts at page, it's ground one, and that's at page

[00:34:08] Speaker 03:
It begins at page 667 of the, I'm sorry, I'm looking at the appendix, page 6 of the brief.

[00:34:15] Speaker 02:
Right.

[00:34:16] Speaker 02:
This is just a broad argument about why estoppel should be applied as to Claim 1.

[00:34:25] Speaker 03:
Yes, but it specifically references the combination of Frye and Michelson.

[00:34:32] Speaker 03:
And that's the issue, Your Honor.

[00:34:35] Speaker 03:
If you look at our petition, when we analyze Claim 18, we go straight into the additional limitations of Claim 18, and we don't discuss the limitations of Claim 1.

[00:34:47] Speaker 03:
And that's in our petition itself.

[00:34:49] Speaker 03:
So when they raised this argument in there, so we argued collateral estoppel, and then in our petition, and we went to the additional limitations of Claim 18 in our petition for Claim 18.

[00:35:02] Speaker 03:
In their response, they re-raised the argument that the Federal Circuit had rejected in New Basis I. In our reply, we re-raised collateral estoppel, argued that collateral estoppel applies for the entirety of ground one, which includes claim 18.

[00:35:20] Speaker 03:
And we also additionally addressed their arguments on the merits, relying again in a consistent manner on this court's precedent in New Basis I.

[00:35:33] Speaker 01:
Did you want to address the cross appeal?

[00:35:35] Speaker 03:
And as to the cross appeal, Your Honor, the, so the first point is Medtronic prior petitions that we relied on and Alpha Tech petition actually cite to the same embodiment.

[00:35:49] Speaker 02:
Different apertures though, right?

[00:35:52] Speaker 03:
Different, actually, actually not for, so one of the aperture, one of the embodiments that we cite has only two apertures.

[00:36:00] Speaker 03:
And that's figure 55.

[00:36:03] Speaker 03:
And that figure was also cited in the Tronic petition and was relied on by- What about figure 63?

[00:36:10] Speaker 02:
Figure 63, we- Tronic relied on the middle aperture, right?

[00:36:14] Speaker 02:
Yes.

[00:36:15] Speaker 02:
And your theory of unpatentability is pointing to the left-hand aperture and then the right-hand aperture of that middle aperture.

[00:36:26] Speaker 03:
Is that right?

[00:36:26] Speaker 03:
Yes, Your Honor, we did point to a different aperture, but the apertures are interchangeable.

[00:36:31] Speaker 03:
And there's no material difference between our reading and Medtronic's because the board found that the medial support separates the second aperture.

[00:36:41] Speaker 02:
There's a limitation in claim one, though, that requires that the first aperture be in parallel with the longitudinal plane of the device of the implant.

[00:36:55] Speaker 02:
So that's more readily recognizable with the middle aperture of figure 63, but it's not quite as recognizable when it comes to the left-hand and right-hand apertures.

[00:37:12] Speaker 02:
Wouldn't you agree with that?

[00:37:13] Speaker 03:
Well, I do agree with that to the point that, Your Honor, the claim language is generally parallel and an alpha-text expert, and this is in the record,

[00:37:23] Speaker 03:
provided an opinion regarding Claim 1, and his opinion was that the aperture that we pointed to in Figure 63 is generally parallel.

[00:37:33] Speaker 03:
His testimony was that it's not exactly parallel, but it's close.

[00:37:37] Speaker 03:
This is at Appendix 6018.

[00:37:40] Speaker 03:
And more importantly, the Board and the Board's opinion on Claim 6 through 9 expressly cited Dr. Branch's opinion.

[00:37:49] Speaker 03:
That's Alpha Tech's expert.

[00:37:51] Speaker 03:
regarding how Claim 1 was met for all of the Claim 6 through 9.

[00:37:59] Speaker 02:
So, for example... What page is that?

[00:38:03] Speaker 03:
So, for Claim 6, it is at Appendix 37.

[00:38:08] Speaker 03:
The Board cites Exhibit 1002, that's Alphatex Experts' Opinion, and cites a range of paragraphs 127 to 160.

[00:38:19] Speaker 03:
And the board explains, this is Dr. Branch's opinion of how at least Fry and Michelson teachers suggest the limitations of Claim 1.

[00:38:27] Speaker 03:
Alpha Tech's expert analyzed Claim 1 in its entirety because he was not relying on collateral estoppel.

[00:38:34] Speaker 03:
He was analyzing the claims of the hold.

[00:38:37] Speaker 03:
So he provided those, that's cited again for Claim 7.

[00:38:42] Speaker 03:
The board cited at Appendix 40, Dr. Branch's opinion regarding how Claim 1 is met.

[00:38:49] Speaker 03:
For Claim 8, that site is Appendix 42.

[00:38:53] Speaker 03:
And for Claim 9, that Appendix site is 44.

[00:38:57] Speaker 03:
So in all cases, the Board had actually considered whether Appitex mapping met Claim 1 and determined that it has.

[00:39:08] Speaker 03:
And more importantly, because the Board had decided that in Figure 63, that medial support, which has two portions,

[00:39:17] Speaker 03:
separated not only the second fusion aperture from the middle aperture, but also the third aperture.

[00:39:23] Speaker 03:
The difference between mapping to the middle aperture and the third aperture didn't, doesn't make a difference in terms of separating them from the second fusion aperture.

[00:39:34] Speaker 03:
As to the generally parallel, there is record evidence that it is generally parallel.

[00:39:39] Speaker 03:
And we basically did not propose any construction of generally parallel.

[00:39:42] Speaker 03:
This is not, that conflicts with Dr. Branch's opinion on generally parallel.

[00:39:48] Speaker 01:
Okay.

[00:39:50] Speaker 01:
Thank you.

[00:39:50] Speaker 01:
And what's the other questions?

[00:39:53] Speaker 01:
All right.

[00:39:54] Speaker 01:
Mr. Rosano, we'll give you a minute to address the cost of bill.

[00:40:02] Speaker 00:
Sure.

[00:40:03] Speaker 00:
Thank you, Your Honor.

[00:40:04] Speaker 00:
I would just get the definition.

[00:40:09] Speaker 00:
It's clearly a 45% is not within the plain more meaning of generally parallel.

[00:40:16] Speaker 00:
And the testimony that council points to at 6018, I think is the deposition testimony of their expert forming under this position where he says that he agrees that the 1418 chamber is not

[00:40:41] Speaker 00:
He says it's not exactly parallel, but it's for particular reasons.

[00:40:48] Speaker 00:
That might be true.

[00:40:49] Speaker 00:
It's not perpendicular, but this is not to address something they never addressed.

[00:40:57] Speaker 00:
I'll further draw attention quickly to 259.

[00:41:02] Speaker 00:
I was asked about this.

[00:41:05] Speaker 00:
There's discussions there where in health care competition,

[00:41:11] Speaker 00:
where they're expressly telling the board how different their challenge to claim AP is than what was previously presented.

[00:41:21] Speaker 00:
Thank you.

[00:41:21] Speaker 00:
There's nothing further.

[00:41:24] Speaker 01:
Okay, thank both council and cases submitted.