[00:00:00] Speaker 01:
The first case that we're going to hear today is appeal number 211030, American National versus Sleep Number Corporation.

[00:00:09] Speaker 01:
Mr. Elliott, are you ready to begin?

[00:00:14] Speaker 03:
May it please the court.

[00:00:15] Speaker 03:
Hi, I'm Kyle Elliott.

[00:00:16] Speaker 03:
This is my colleague, Kevin Tuttle, appearing on behalf of American National Manufacturing.

[00:00:20] Speaker 03:
American National's first concern with the decision below is the moving target of claim construction pertaining to the term substantially fluidly sealed.

[00:00:29] Speaker 03:
American National proposed a functional construction which is directed to the basic operation of an air-adjustable mattress.

[00:00:36] Speaker 03:
What we got from the board was largely but not wholly sealed, merely giving us two adverbs to replace one adverb.

[00:00:45] Speaker 03:
What we are asking you to provide is a meaningful construction that will put everyone on notice of what this phrase means, namely, sufficiently sealed to permit the transfer of air from the pump into the air mattress chambers during operation, which is consistent with the claims as a whole and with both embodiments that are disclosed in the 172 patent.

[00:01:08] Speaker 03:
Indeed, the public doesn't know what the board construction means until it is actually applied in an invalidity or an infringement analysis by a decision maker.

[00:01:19] Speaker 03:
In that application, the board erred again by applying this unclear definition to exclude the Schaeffer prior art reference.

[00:01:27] Speaker 03:
This is contrary to the intrinsic record and contrary to the 172 patent itself, which indicates that column three, line 64 through column four, line one, that the pump 12 of figure one, which is a blower type pump as disclosed in the reference Schaeffer, is used with a valve enclosure assembly of the 172 patent.

[00:01:47] Speaker 00:
Surely the board applied what it views sort of the reasonable common sense dictionary type meaning, correct?

[00:01:55] Speaker 03:
yeah they went to uh... case your case which i think was inappropriate extrinsic reference but yes i think they were trying to look for some sort of a dictionary general yes

[00:02:08] Speaker 03:
I think what's more appropriate here, Your Honor, is to apply either a functional definition out of the intrinsic record or even a structural definition out of the intrinsic record.

[00:02:17] Speaker 03:
I think the functional works better because I think the jury understands it better.

[00:02:20] Speaker 01:
Did the patent specification provide that kind of functional definition?

[00:02:24] Speaker 01:
I didn't see anything where there was lexicography in the patent specification, for example.

[00:02:31] Speaker 03:
That is absolutely correct.

[00:02:33] Speaker 03:
The specification is absolutely almost sparse on what substantially fluidly sealed means.

[00:02:39] Speaker 03:
And so that's where we're turning to other places in the intrinsic record and in the specification for other hints as to what this might mean.

[00:02:46] Speaker 03:
So again, my point is that

[00:02:49] Speaker 03:
In the application of this, that's when you start to find out what this other general dictionary definition really means.

[00:02:55] Speaker 03:
And how the board applied that was to exclude the Schaeffer reference, which is a blower-based pump.

[00:03:02] Speaker 03:
But in the specification, you see the blower-based pump at column three, line 64, which I just referenced, is intended to be used with the valve enclosure assembly of the claimed invention.

[00:03:14] Speaker 03:
You can also see this at column five,

[00:03:17] Speaker 03:
lines 18 through 23 of the 172 patent, where it states that the pump is a fan.

[00:03:23] Speaker 02:
Do you agree that Schaeffer doesn't teach a seal on its air chamber?

[00:03:27] Speaker 02:
Do you agree with that statement?

[00:03:30] Speaker 03:
That's correct.

[00:03:31] Speaker 03:
I do agree with that statement.

[00:03:33] Speaker 03:
See, the thing to focus on here is that the air chamber of Schaeffer and the plain valve enclosure assembly are materially the same.

[00:03:42] Speaker 03:
And what that means is the air inlet where a pump mounts is open, it's unsealed.

[00:03:48] Speaker 03:
And then the rest of the box is sealed by either its structure or the other openings are covered by valves.

[00:03:55] Speaker 03:
And so each of Verzalik is the same way.

[00:03:58] Speaker 03:
The airbox of Schaeffer is the same way where you have an unsealed air inlet.

[00:04:07] Speaker 03:
So continuing to think about the intrinsic record, let's consider the claims themselves as argued on pages 48 and 49 of the blue brief.

[00:04:17] Speaker 03:
Valve enclosure is what defines the substantially fluidly sealed air chamber.

[00:04:24] Speaker 03:
It's not the pump and it's not the other components.

[00:04:27] Speaker 03:
Indeed, each of the claims merely recites a pump.

[00:04:30] Speaker 03:
It doesn't specify the type of pump, whether it's a blower pump or what we call a linear pump, which would seal it.

[00:04:38] Speaker 03:
So that is both the Schaeffer airbox and the claimed valve enclosure are indeed unsealed at the air inlet and sealed everywhere else, either by the structure of themselves or by valves.

[00:04:49] Speaker 03:
Substantially fluidly sealed is a characteristic of the claimed enclosure, not the claimed inflatable mattress system as a whole.

[00:05:04] Speaker 03:
So clearly the enclosure itself is unsealed.

[00:05:07] Speaker 03:
It has an opening at the air inlet.

[00:05:09] Speaker 03:
You can even see that in claim two where it recites the air inlet.

[00:05:13] Speaker 03:
The system of the 172 patent would not seal as a whole except in the instance where a linear pump is mounted over the air inlet.

[00:05:21] Speaker 03:
Alternatively, if a fan or blower pump is mounted over the air inlet, the system remains unsealed, but the claim valve enclosure itself remains substantially fluidly sealed because it can accomplish its function of directing air into the air chambers

[00:05:37] Speaker 03:
of the air mattress as a state of below.

[00:05:39] Speaker 03:
Also significant in the intrinsic record is the fact in the prosecution history that examiners twice used the Schaeffer airbox to reject these claims.

[00:05:50] Speaker 03:
Once in the original examination and then a second time under re-examination, the Schaeffer reference was applied to... Are you talking about the Schaeffer 154 patent now?

[00:05:59] Speaker 01:
That's correct.

[00:05:59] Speaker 01:
Now that's not relied on in your IPR petition, right?

[00:06:03] Speaker 03:
That's correct.

[00:06:04] Speaker 01:
So why can you talk about it now?

[00:06:06] Speaker 03:
So Schaeffer PCT, which was relied on in our petition, is basically a continuation in part of the Schaeffer 154.

[00:06:14] Speaker 03:
The Schaeffer PCT adds guides and stops, which weren't addressed by the board because of the finding on substantially fluidly sealed.

[00:06:21] Speaker 01:
So Schaeffer 154, however... Did you explain this in your petition?

[00:06:24] Speaker 01:
Did you say in your petition that you were relying on not just Schaeffer PCT, but, you know, the Schaeffer 154, which differs a little bit from it, but from which it

[00:06:34] Speaker 03:
No, we did not say that in our petition, Your Honor.

[00:06:37] Speaker 01:
So how would there be notice?

[00:06:39] Speaker 03:
So this is part of the intrinsic record.

[00:06:42] Speaker 03:
So under the seedbed decision, we're allowed to refer to the intrinsic record per your precedent on matters of claim construction.

[00:06:51] Speaker 03:
And so what we're doing is pointing out that in the file history, an examiner used the Schaeffer 154 patent, which in respects to this air box is the same as Schaeffer PCT to reject that claim of claim one of the 172 application.

[00:07:07] Speaker 01:
You're relying on this for claim construction, but not in order for anticipation or obviousness.

[00:07:13] Speaker 01:
That's correct.

[00:07:14] Speaker 01:
Because I thought you were arguing that there was some sort of acquiescence from sleep number, that a particular element was in the priority.

[00:07:23] Speaker 03:
So we've argued both acquiescence and estoppel based on what happened in that prosecution history.

[00:07:30] Speaker 01:
What does that have to do with... I'm still having a hard time understanding

[00:07:34] Speaker 01:
why acquiescence or estoppel would relate to claim construction as opposed to what the prior art teaches.

[00:07:41] Speaker 03:
Because of the general definition that was given to us by the board, like I asserted earlier, we don't know what this construction actually means until we get to the point where you start to apply it.

[00:07:52] Speaker 03:
So the two adverbs of largely, but not wholly sealed or substantially sealed, it doesn't help you understand what it means.

[00:07:59] Speaker 03:
And so what we're doing is we're looking to both the analysis and claim construction and the analysis of how that was applied to see exactly what this means.

[00:08:08] Speaker 03:
And so when you look at that prosecution history,

[00:08:10] Speaker 03:
you see that the examiner's rejected on the basis of Schaeffer 154 twice.

[00:08:16] Speaker 03:
And both times, this is the acquiescence piece, the patent applicant did not comment on that rejection.

[00:08:23] Speaker 03:
And the first time, they actually amended the claim to make sure this isn't just a plain acquiescence argument.

[00:08:29] Speaker 03:
They actually amended the claim to add the guys and sops to gain allowance.

[00:08:33] Speaker 03:
And then it was rejected the second time in re-examination over Schaeffer 154.

[00:08:38] Speaker 03:
And again, without comment from the patentee at that point in time.

[00:08:43] Speaker 03:
So trying to make clear... Did you argue this below?

[00:08:47] Speaker 03:
No, we did not.

[00:08:48] Speaker 01:
Okay.

[00:08:48] Speaker 01:
So why can you argue it here?

[00:08:50] Speaker 03:
So as I already stated, we have, pursuant to the court's precedent in CBED, we can raise these intrinsic arguments relevant.

[00:08:59] Speaker 01:
You're saying this is just additional evidence in support of your claim discussion.

[00:09:02] Speaker 03:
Yes.

[00:09:03] Speaker 03:
Yeah.

[00:09:03] Speaker 03:
So there's been a lot of waiver discussion throughout the brief.

[00:09:07] Speaker 03:
One of the things to keep in mind here is the dichotomy between or the difference between issues and arguments.

[00:09:11] Speaker 03:
And this is another argument that also was raised by us because we received the board's construction not until the final written decision.

[00:09:20] Speaker 03:
And that kind of takes me over to my administrative procedure and due process violations that American Nationals complaining of.

[00:09:28] Speaker 03:
That in addition to being an erroneous claim construction, the panel below arrived at the construction in an unfair, prejudicial manner, violating due process and the APA.

[00:09:37] Speaker 01:
American Nationals... This is where you're arguing that it wasn't raised until the sir replied.

[00:09:41] Speaker 03:
Yes, that's part of it.

[00:09:42] Speaker 01:
But weren't you able to address this issue, the claim construction issue, and understand both parties' arguments at oral argument?

[00:09:51] Speaker 01:
I seem to recall that the record included ample discussion of this claim construction issue at argument.

[00:09:58] Speaker 03:
True.

[00:09:59] Speaker 03:
And what our point also is is that even though we get a chance to discuss it at oral argument, we don't have an opportunity to have our experts evaluate it, have their experts evaluate it, cross-examine each other's experts on it.

[00:10:10] Speaker 03:
So there isn't the process of vetting a claim construction where you actually have testimony on it.

[00:10:15] Speaker 03:
It's just the attorney argument.

[00:10:18] Speaker 03:
And I see I've gone into my rebuttal time.

[00:10:20] Speaker 03:
So if Your Honors, I'll reserve the rest for rebuttal.

[00:10:24] Speaker 01:
Mr. Cordell.

[00:10:26] Speaker 00:
May it please the Court.

[00:10:27] Speaker 00:
Good morning.

[00:10:27] Speaker 00:
Ruffin Cordell for Sleep Number.

[00:10:29] Speaker 00:
It's good to be back in person.

[00:10:32] Speaker 00:
So the upshot of this appeal is that from sleep number's perspective, we think the board largely got this correct.

[00:10:39] Speaker 00:
And we're not asking really for much of anything here.

[00:10:42] Speaker 00:
I know we have a cross appeal, but we think the board did good work here.

[00:10:48] Speaker 00:
Relating to the particular issues raised by my friend Mr. Elliott, the substantially fluidly sealed term was reached – the construction of that term was reached by the board after four pages of analysis where the board looked specifically at what that plain meaning was, as Judge Schall pointed out, to those of ordinary skill in the art.

[00:11:11] Speaker 00:
Mr. Elliott points out that the construction itself only adds a couple of words and doesn't really change much.

[00:11:18] Speaker 00:
But I would be as critical of his construction, sealed sufficiently to deliver compressed air when opening.

[00:11:23] Speaker 00:
That would cover an unsealed enclosure.

[00:11:26] Speaker 00:
That would cover situations that certainly were nowhere disclosed in this particular patent.

[00:11:33] Speaker 00:
But it wasn't just the board's work there.

[00:11:35] Speaker 00:
They cited the specification at three different places, columns two, lines 48 through 50.

[00:11:41] Speaker 00:
64 through 65, and column 4, 30 through 35, for specific examples of the sealed enclosure allowing a very important outcome of this invention, which is that you're able to ascertain the pressure in the mattress at the enclosure.

[00:11:58] Speaker 00:
And that has all kinds of advantages that were extolled in detail by our expert, Dr. Messner, at appendix 3036, 3039, and 3048.

[00:12:11] Speaker 00:
There's simply no question here that that substantially fluidly sealed enclosure plays an important part in this invention.

[00:12:21] Speaker 00:
And the board's construction, largely but not wholly sealed, does give us the kind of explanation that a lay jury would be able to react to.

[00:12:30] Speaker 02:
Do you have any concern with the citation to the York case that your opposing counsel mentioned?

[00:12:36] Speaker 00:
Thank you, Judge Cunningham.

[00:12:37] Speaker 00:
Yes.

[00:12:39] Speaker 00:
When I read the board's

[00:12:40] Speaker 00:
opinion with the final written decision, I thought that was merely a confirmation of the construction that they had reached.

[00:12:48] Speaker 00:
I didn't see them as reaching into the York case for the fundamental meaning of the term.

[00:12:53] Speaker 00:
I think they acknowledged that this court has found that

[00:12:56] Speaker 00:
that construction to be acceptable and usable to lay jurors.

[00:13:00] Speaker 00:
But I didn't see it as a primary touchstone, if you will, of the construction.

[00:13:05] Speaker 00:
So I dispute the ANM position that they somehow reached into York and that was the construction.

[00:13:10] Speaker 00:
I think it was really more the tail of the dog rather than the dog.

[00:13:16] Speaker 00:
With respect to the acquiescence issue,

[00:13:20] Speaker 00:
The reality is that there were two rejections over the Schaeffer 154 references, Judge Schall pointed out, that they're simply using for claim construction.

[00:13:30] Speaker 00:
I understand that, acknowledge that.

[00:13:33] Speaker 00:
The problem that they face, and I think my brother said this during his remarks, is that the applicant did not comment on that rejection at all.

[00:13:41] Speaker 00:
So what we have is we have the examiner

[00:13:43] Speaker 00:
making a broad rejection, and he simply listed the elements at appendix 125.

[00:13:48] Speaker 00:
You can see the rejection.

[00:13:50] Speaker 00:
He didn't say, oh, Schaefer has this specific structure that is the substantially fluidly sealed enclosure.

[00:13:56] Speaker 00:
He just listed them the way, when I was a bad examiner, we often did.

[00:13:59] Speaker 00:
We list everything that's in the client.

[00:14:02] Speaker 00:
And the applicant said nothing.

[00:14:05] Speaker 00:
The applicant added different limitations, and the focus shifted.

[00:14:08] Speaker 00:
Perhaps it was the easiest path to allowance.

[00:14:10] Speaker 00:
Lots of reasons people do that.

[00:14:12] Speaker 00:
But what the law tells us is that you can't view an amendment as an admission unless the applicant makes a comment about the particular subject matter at issue here.

[00:14:20] Speaker 00:
Woods and 3M are directly on point.

[00:14:23] Speaker 00:
And Woods, in particular, I would refer the court

[00:14:28] Speaker 00:
1287, where it says, in order to view an amendment as an admission, it requires more than the mere presence of a limitation.

[00:14:35] Speaker 00:
The applicant has to say something.

[00:14:36] Speaker 00:
There has to be some indication, some objective indicia that there was an admission here.

[00:14:42] Speaker 00:
So I think that the acquiescence point doesn't really make it.

[00:14:46] Speaker 02:
How would we distinguish between an air enclosure that is sealed versus substantially thoroughly sealed?

[00:14:52] Speaker 00:
I do think that is the issue that the board was grappling with, Your Honor, and I think that's a valid issue.

[00:14:58] Speaker 00:
I think that what the board was attempting to do was to recognize that in order to be substantially fluidly sealed, you had to have something like a pump that was either sealed or could be sealed, because the pump is a gaping opening in the enclosure.

[00:15:12] Speaker 00:
I heard my friends say that, in fact, the prior art doesn't show a sealed enclosure.

[00:15:17] Speaker 00:
And in part, that's because of the blower pump that they use.

[00:15:20] Speaker 00:
And I hate to use that term, because

[00:15:22] Speaker 00:
I studied this and studied this and couldn't find a real definition of a blower pump.

[00:15:26] Speaker 00:
But the reality is it's a pump that's open to the atmosphere.

[00:15:29] Speaker 00:
And so if it's not actively pushing air, air is escaping.

[00:15:34] Speaker 00:
It's a problem.

[00:15:35] Speaker 00:
So that unsealed pump is really where the focus of this lies.

[00:15:39] Speaker 00:
And that ability to measure the bladder pressure, the mattress pressure, at the enclosure I think is the key.

[00:15:46] Speaker 00:
And we did talk about that construction in functional terms below, but we believe what the board did here was correct and will be most helpful to the lay jury.

[00:15:54] Speaker 00:
ultimately should we get that far.

[00:15:57] Speaker 00:
And so it's the right construction.

[00:16:02] Speaker 01:
So if I could just briefly address... Does the specification say anything about how to deal with these blower motors?

[00:16:08] Speaker 01:
Does it say that you need to have some enclosure?

[00:16:11] Speaker 01:
What do you need to do to address that situation?

[00:16:13] Speaker 00:
It's not as explicit as that, but it makes it clear that there are multiple embodiments here.

[00:16:18] Speaker 00:
My friend said, well, they talk about a blower pump.

[00:16:21] Speaker 00:
Well, you could use a blower pump if you also make combinations to have it sealed.

[00:16:26] Speaker 00:
One of the figures, Figure 4, has three valves on it.

[00:16:30] Speaker 00:
And the expectation of the third valve, the one that we color, I think, in purple in our brief, is that it

[00:16:37] Speaker 00:
acknowledges that the pump is sealed and that the only way to get air out of the system is through this extra valve, this extra structure that is provided.

[00:16:45] Speaker 00:
So it doesn't, in text, tell us exactly how to handle it, but it tells us that the pump must be sealed, that you wouldn't have that extraneous valve in the system but for the presence of a sealed pump.

[00:16:59] Speaker 00:
And that's what the claims talk about.

[00:17:01] Speaker 00:
So there are other embodiments that could have been claimed, it just wasn't the case here.

[00:17:06] Speaker 00:
I can briefly address the APA issue.

[00:17:08] Speaker 00:
I do believe that there was ample discussion during the proceeding over the construction and the board is free to reach its own construction as often happens, both before the PTAB and the district courts.

[00:17:20] Speaker 00:
Oftentimes the party suggestions are not what carries the day, even in this court.

[00:17:25] Speaker 00:
Try as I might.

[00:17:27] Speaker 00:
But the reality is they've reached a different construction.

[00:17:29] Speaker 00:
No one can complain about that because it's being done as a matter of law.

[00:17:32] Speaker 00:
The board is doing the best they can.

[00:17:34] Speaker 01:
And there's precedent to support that position, right?

[00:17:37] Speaker 00:
Plenty.

[00:17:38] Speaker 00:
Plenty.

[00:17:38] Speaker 00:
I mean, the reality is that essentially every case that we face often, you can imagine at least one of the constructions is something that the board finds on its own, perhaps in between the positions of the parties, if nothing else.

[00:17:50] Speaker 00:
There's no APA issue here.

[00:17:53] Speaker 00:
So unless there are other questions, I think I've covered my issues.

[00:17:57] Speaker 01:
Do you want to discuss your cross-appeal issues at all?

[00:18:00] Speaker 01:
Do you really think that we can reach the construction of the pressure monitoring means, given that it's seeking an advisory opinion?

[00:18:07] Speaker 00:
I don't, Your Honor.

[00:18:08] Speaker 00:
And as I was going through the briefing, I saw in the yellow brief perhaps an agreement from our opponents that, in fact, under Skyhawk, it was not appropriate to change that construction.

[00:18:21] Speaker 00:
So we started that process somewhat apprehensive because

[00:18:25] Speaker 00:
sort of positions they had taken, and they suggested that perhaps we would be bound with that construction for all time.

[00:18:32] Speaker 00:
But because it would not alter the board's decision, ultimately the judgment, if we can call it that of the board, it's not appropriate for us to do anything with it.

[00:18:40] Speaker 00:
And we're free to argue whatever positions we can in proceedings going forward.

[00:18:46] Speaker 00:
And I think we've come to an agreement about that.

[00:18:48] Speaker 00:
So I think that one is one that we don't have to deal with.

[00:18:52] Speaker 02:
Do you want to raise anything with respect to Rosalik?

[00:18:54] Speaker 02:
I think that's how you say it.

[00:18:56] Speaker 00:
I've had so much trouble with that, Your Honor.

[00:19:00] Speaker 00:
Rosalik.

[00:19:03] Speaker 00:
The thing that struck me about Rosalik, and I understand that I'm going into the teeth of a substantial evidence standard here, but the thing that struck me about Rosalik is that the entirety of that disclosure

[00:19:16] Speaker 00:
is born on a hospital bed that requires continuous airflow.

[00:19:21] Speaker 00:
So it only functions when the blower is moving air from the outside through the device and out.

[00:19:28] Speaker 00:
It doesn't inflate the mattress.

[00:19:30] Speaker 00:
It literally is providing air so that the porous membrane in the mattress can support the patient's skin.

[00:19:37] Speaker 00:
And so it is an example of taking a disclosure

[00:19:41] Speaker 00:
and turning it on its head.

[00:19:43] Speaker 00:
And what the board said is, look, it's capable of being sealed.

[00:19:47] Speaker 00:
And I understand that, but we need to confront the prior art for what it does and what it says.

[00:19:51] Speaker 00:
And in this case, the Brazilic disclosure, it really is taking it from fish to fowl.

[00:19:59] Speaker 00:
It is no longer within the four corners of that reference.

[00:20:03] Speaker 00:
So that's really the Gravenman art.

[00:20:04] Speaker 01:
What about the express disclosure about the airbox being airtight?

[00:20:08] Speaker 00:
That was an unfortunate statement.

[00:20:10] Speaker 00:
You know, I acknowledge that.

[00:20:12] Speaker 00:
They put it right up front in column eight, but then they don't really explain it.

[00:20:16] Speaker 00:
And there is some explanation of seals that are used here and there throughout Brazil.

[00:20:22] Speaker 00:
But what we know from the remainder of the disclosure is that that blower pump in Brasalic is active, and it is moving.

[00:20:31] Speaker 00:
And their expert admitted that you cannot close the valves that might be used to somehow seal the pump.

[00:20:37] Speaker 00:
You cannot close the valves and have Brasalic operate.

[00:20:41] Speaker 00:
So he made that admission at appendix 499.

[00:20:45] Speaker 01:
Given the standard of review, which is substantial evidence, what do we do in a situation like that where the reference expressly says something, but there's some logic to suggest that what the reference says is untrue, but the board relies on what the reference expressly says, it makes it a little difficult.

[00:21:01] Speaker 00:
I acknowledge the difficulty.

[00:21:03] Speaker 00:
There's no two ways about that.

[00:21:04] Speaker 00:
However, we have to take the reference for what it actually tells us and what it teaches to one of ordinary skill.

[00:21:09] Speaker 00:
And that single passing reference in column eight, before there's really any discussion of the enclosure, I would posit it's insufficient.

[00:21:16] Speaker 00:
Given the overall disclosure and the fact that it's substantially fluidly sealed…

[00:21:20] Speaker 00:
You know has has to have some meaning it has to have it has to actually carry some weight and the airtight box of a Plastic panel is airtight, but it will not it will not function in the context of this invention What record citation do you have for your position that your expert said the valves can't be?

[00:21:41] Speaker 00:
It was actually their expert and it's an appendix 499 4099

[00:21:47] Speaker 00:
which is at page 269, 1 through 14.

[00:21:51] Speaker 00:
That was his deposition.

[00:21:53] Speaker 00:
And the quote I have written down here is, can't actually close the valves in Brasalek because the bladders would all deflate, right?

[00:22:00] Speaker 00:
I have to keep the valves open in some form.

[00:22:03] Speaker 00:
That was the exact colloquy that was exchanged.

[00:22:08] Speaker 00:
And I think he recognized that one of ordinary skill reading Brasalek would realize this can't be substantially fluidly sealed because if it did, it wouldn't function.

[00:22:17] Speaker 02:
And do you have any case law support for the basic contradiction that Judge Dole just outlined in terms of what the reference says versus this other?

[00:22:27] Speaker 02:
Tess, may I appoint you?

[00:22:29] Speaker 00:
Not at my fingertips, Your Honor, but it's certainly been a part of our practice forever, that we read prior art for what it tells us.

[00:22:35] Speaker 00:
And I understand I'm in an anticipation context.

[00:22:38] Speaker 00:
And so in that context, we are a little more strict about the letter of the reference.

[00:22:45] Speaker 00:
But again, overall, Verzalek doesn't lead us to these patent claims and the suggestion that one of ordinary skill would even read it to see the anticipation that the board found.

[00:22:57] Speaker 00:
is difficult.

[00:22:59] Speaker 01:
Any further questions?

[00:23:01] Speaker 00:
No.

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

[00:23:01] Speaker 00:
All right.

[00:23:01] Speaker 00:
Thank you.

[00:23:02] Speaker 01:
Thank you.

[00:23:04] Speaker 01:
Mr. Elliott, you have nearly your five minutes left.

[00:23:08] Speaker 03:
Thank you, Your Honor.

[00:23:10] Speaker 03:
Let me start first with the Verzalik reference.

[00:23:13] Speaker 03:
Sleep number likes to refer to Verzalik as a leaky system.

[00:23:17] Speaker 03:
But leaky, the term not used in Verzalik, is a complete misnomer.

[00:23:21] Speaker 03:
Verzalik successfully directs compressed air where it's supposed to go.

[00:23:25] Speaker 03:
into the air chamber of the air mattresses.

[00:23:27] Speaker 03:
And that air is directed through the same pathway as the 172 patent.

[00:23:32] Speaker 03:
It comes from the pump, into the airtight air box, through the valves, and into the air mattress.

[00:23:38] Speaker 03:
The difference in Drzalik is of course that it's a low air loss mattress, which is also true of one of the accused products underneath the P5000 of American National.

[00:23:46] Speaker 03:
The difference is it's a low air loss mattress.

[00:23:48] Speaker 03:
That the surface of the mattress is air permeable, allowing air to intentionally escape, not leak, out of the mattress to carry moisture away from the patient.

[00:23:56] Speaker 03:
Sleep number improperly focuses on the alleged leakiness of the air inflatable mattress system as a whole instead of the airtight characteristic of the air box.

[00:24:05] Speaker 03:
Air is not unintentionally leaking out of this.

[00:24:07] Speaker 03:
It's going in the same pathway.

[00:24:09] Speaker 03:
And if you put a linear pump over the air inlet, you would have a sealed system.

[00:24:14] Speaker 03:
You're not going to do that here because of the low air loss from an engineering standpoint.

[00:24:17] Speaker 03:
But you would have the same system.

[00:24:19] Speaker 03:
And that goes back to my earlier point regarding substantially fluidly sealed, where what's supposed to provide the substantially fluidly sealed air chamber is the enclosure.

[00:24:28] Speaker 03:
The pump isn't what provides that.

[00:24:30] Speaker 03:
And you've got to keep in mind the actual claim language the pump isn't specified as to type, whether it's a sealed pump or an unsealed pump.

[00:24:38] Speaker 01:
What about that admission at page A4099 of your own expert?

[00:24:43] Speaker 01:
How do you respond to that?

[00:24:44] Speaker 03:
Yes, so if you read that, the expert doesn't actually say that it cannot be sealed.

[00:24:48] Speaker 03:
And actually, if you look at the device, it has one.

[00:24:50] Speaker 01:
I'm actually looking at that page.

[00:24:51] Speaker 01:
Yeah.

[00:24:52] Speaker 01:
So do you want to tell me specifically what it is that he says?

[00:24:56] Speaker 03:
So I don't have that quote in front of me, Your Honor, but I don't believe he says it cannot be sealed.

[00:25:01] Speaker 03:
He's talking about the operation of it for the low air loss feature, you would not seal it.

[00:25:05] Speaker 03:
Those valves can be sealed and that bed actually has what is called a toileting function in which you would seal those valves for that.

[00:25:13] Speaker 03:
Now, admittedly, that deflates the cells, right?

[00:25:16] Speaker 03:
But the key point about Brasalic in regard to the 102 rejection is that it does have an airtight air box similar to the structure and even in material respects the same as the valve enclosure of the 172 patent.

[00:25:32] Speaker 01:
That specifically being it has an air inlet that is unsealed and then it has... I think the quote is, well you can't actually close those valves in Brasic because then the bladders would all deflate, right?

[00:25:45] Speaker 01:
And then the answer is, that's correct.

[00:25:47] Speaker 01:
Because they're all open in the atmosphere, that's right.

[00:25:50] Speaker 01:
So you have to keep the valves open in some form.

[00:25:52] Speaker 01:
And I've probably not seen that from you at all.

[00:25:57] Speaker 01:
That's right.

[00:25:57] Speaker 01:
But anyway, I want to make sure you're addressing that quote.

[00:26:00] Speaker 01:
And so why does that not tell me that it's not airtight, that the controller is not airtight?

[00:26:07] Speaker 03:
Well, it's not open to atmosphere.

[00:26:10] Speaker 03:
We talk about the blower pumps being open to atmosphere.

[00:26:13] Speaker 03:
As my esteemed opposing counsel said, that when that blower is on, air is not coming out.

[00:26:18] Speaker 03:
And that blower in Vazolik runs the entire time in order to maintain the low air loss.

[00:26:23] Speaker 03:
And so operationally, it's correct that those valves are not closing off.

[00:26:27] Speaker 03:
But again, you still have an airtight air box.

[00:26:29] Speaker 02:
But the actual language though here says because they're all open to the atmosphere.

[00:26:33] Speaker 02:
So what were you saying about atmosphere?

[00:26:35] Speaker 02:
I want to make sure.

[00:26:36] Speaker 03:
So where the open to atmosphere comes in is if the fan or the blower shuts off, and then air can back out of the system, and it backs out of the system into atmosphere.

[00:26:47] Speaker 03:
And so that's what you're looking at about the open to atmosphere.

[00:26:50] Speaker 03:
But the fan blower in Rosalik runs constantly to maintain the low air loss.

[00:26:55] Speaker 03:
So air isn't escaping out of that system other than as intended, and that's through the air permeable membrane of the mattress surface.

[00:27:05] Speaker 03:
If I may look back at substantially fluidly sealed, this is one of those things where substantially, if something's sealed, it's sealed.

[00:27:15] Speaker 03:
If something's substantially sealed, there is indeed some unsealed element to that.

[00:27:20] Speaker 03:
And for here, that's the air inlet of Schaeffer, it's the air inlet of the valve enclosure, and it's the air inlet of Rosalik.

[00:27:28] Speaker 03:
And so if they wanted to cover something that was fully sealed, like they discussed in the red brief,

[00:27:34] Speaker 03:
they should have omitted the word substantially.

[00:27:37] Speaker 03:
Being a patent prosecutor, substantially has its place in use.

[00:27:40] Speaker 03:
If I want to say something is substantially bounded on a center line, then I've added some breadth to my claim by noting that it can kind of slide one way or the other.

[00:27:48] Speaker 03:
Here, this particular issue seems to me to be one of my wife and I, if we're either pregnant or we're not.

[00:27:54] Speaker 03:
It's either sealed or it's substantially sealed.

[00:27:57] Speaker 03:
And if it's only substantially sealed, there is some unsealed element to that.

[00:28:03] Speaker 01:
You're out of time.

[00:28:04] Speaker 01:
Do you have anything you want to add?

[00:28:06] Speaker 03:
No, I'm good, Your Honor.

[00:28:07] Speaker 03:
Thank you very much.

[00:28:07] Speaker 01:
Thank you, Mr. Elliott.

[00:28:09] Speaker 01:
Mr. Curdell, you have a little over two minutes left if you'd like to take any of your rebuttal time on the cross.

[00:28:17] Speaker 00:
Only to add that my partner, Mr. Courtney, has ably found the Wasica case, which stands for the proposition that even in an anticipation context, and that's 853 F3 1272,

[00:28:30] Speaker 00:
that the ambiguity in the reference has to be taken into account.

[00:28:35] Speaker 00:
We can't simply take the one-off statement, for example, in column eight of an airtight box.

[00:28:41] Speaker 00:
We have to read the reference in its entirety.

[00:28:46] Speaker 01:
Thank you.

[00:28:47] Speaker 01:
Thank you.

[00:28:47] Speaker 01:
The case is submitted.