[00:00:00] Speaker 03:
So our next case is appeal number 21-1321, American National Versus Sleep Number Corporation.

[00:00:09] Speaker 03:
Mr. Elliott, when you're ready, you may proceed.

[00:00:15] Speaker 04:
Thank you, Your Honor.

[00:00:15] Speaker 04:
May it please the court.

[00:00:16] Speaker 04:
This appeal relates to similar claims of two related patents.

[00:00:21] Speaker 04:
Unfortunately, the board found the skills of the PACETA, having a four-year engineering degree and multiple years of experience with programming and in the industry, unable to perform basic high school math and unable to substitute a simple multiplicative offset taught by the EBO reference into a previously accepted combination, including a general offset or adjustment factor.

[00:00:43] Speaker 04:
That is, claim one, for example, of either patent

[00:00:46] Speaker 04:
broadly claims an adjustment factor and is silent as to the type of offset for that adjustment factor.

[00:00:53] Speaker 04:
Ebel teaches both additive offsets and multiplicative offsets for error adjustment.

[00:00:58] Speaker 04:
In referring to page 27 of the blue brief, it explains these concepts with the substantially same graph used by sleep number in the 154 and 747 patents.

[00:01:09] Speaker 04:
You can see the side-by-side comparison of Ebel's figure 3a with figure 4 of the challenge patents that Ebel clearly demonstrates the graphical and mathematical relationship between the measured pressure and the remote actual pressure during the inflation and deflation.

[00:01:24] Speaker 04:
And Ebel uses an additive offset to determine the bag pressure during inflation and a multiplicative offset during deflation, just like the challenge patents.

[00:01:34] Speaker 04:
The board's reported struggle here is that Ebbels multiplicative offset is applied to a measured pressure to determine the actual pressure, not to calculate a target pressure.

[00:01:45] Speaker 04:
But A&M has already asserted, and the board had already found, that it was obvious in view of the GIF mitol-Pillsbury combination to use an offset to calculate a target pressure.

[00:01:55] Speaker 03:
I asked you something.

[00:01:56] Speaker 03:
Sure.

[00:01:57] Speaker 03:
Why isn't the board's finding supported by substantial evidence?

[00:02:00] Speaker 03:
For example, the other references seem to be directed towards computing a target pressure in one place based on the measurement of pressure in a different place, right?

[00:02:10] Speaker 03:
But EBL's not directed to that problem.

[00:02:13] Speaker 03:
Instead, it's measuring pressure in a single place.

[00:02:15] Speaker 03:
I think that's part of the board's reasoning here for why it would have been obvious to combine EBL with the other references.

[00:02:22] Speaker 03:
Why isn't that sufficient substantial evidence?

[00:02:25] Speaker 04:
It ignores the structure of the claims.

[00:02:28] Speaker 04:
The structure of claim one is agnostic as to the type of offset, whether multiplicative, whether additive, or even an interval.

[00:02:36] Speaker 04:
You could go to a higher level function.

[00:02:38] Speaker 04:
Claim one is just an adjustment factor.

[00:02:41] Speaker 04:
And so we established, and the board agreed with us, that it was obvious to use an adjustment factor, excuse me, an additive, or any, excuse me, it's obvious to use any offset, okay, to calculate a target pressure.

[00:02:56] Speaker 04:
All IBL had to do then, and all the persons wearing skill in the art had to do then, was take the multiplicative offset, as taught by IBL, and use it in a deflation context.

[00:03:06] Speaker 03:
I guess my question is, thinking about the standard of review again, substantial evidence,

[00:03:11] Speaker 03:
I understand it feels like you're re-arguing a factual question that the board already decided, in which the board has support for its decision.

[00:03:20] Speaker 03:
So that's why I'm struggling.

[00:03:21] Speaker 04:
Well, your honor is correct, of course, that what the board pointed to is that difference, and I didn't even set it right as your question came up, that what EBL does is it applies that multiplicative offset in order to calculate what the actual pressure is in that remote air chamber.

[00:03:39] Speaker 04:
And so what we had already established, though, with the structure of the claims is that it's obvious to use an offset.

[00:03:46] Speaker 04:
to correct for error between the two.

[00:03:49] Speaker 04:
And it's obvious to use that offset in order to calculate a target pressure.

[00:03:54] Speaker 04:
And so all you really have to do, again, is take that multiplicative offset and plug it in for, in the case of Mitol, an additive offset.

[00:04:01] Speaker 04:
In the case of Pillsbury, a subtractive, which would also be additive, a subtractive offset on deflation.

[00:04:07] Speaker 04:
And so that's the board's reasoning that missed that particular point of how these claims are structured.

[00:04:13] Speaker 03:
Does your petition include a specific reason for why you would add ABLE to the other three reference combination?

[00:04:20] Speaker 04:
Yes, it does.

[00:04:21] Speaker 04:
And so when you look at EBLE and the explanation was provided in the context of claim one, starting there, and we'll use claim one and claim five as our examples.

[00:04:33] Speaker 04:
In the context of claim one, you look at appendices sites

[00:04:36] Speaker 04:
930 through 932, and then more specific to the direct limitations, 942 to 946.

[00:04:44] Speaker 04:
That's those for claim one.

[00:04:45] Speaker 04:
And then when you jump to claim five, and claim five expressly incorporated the argument from claim one into it, and so the appendix sites there would be 960 through 963 for claim five to use the multiplicative offsets to calculate the target pressure.

[00:05:12] Speaker 04:
I sense more questions coming, but I'll go on to another topic until you're ready with them.

[00:05:18] Speaker 04:
Sleep number claims that the board wrongfully switched the burden of proving the claims invalid from American national to sleep number and placed the burden on sleep number to disprove American nationals assertions of invalidity.

[00:05:30] Speaker 04:
This is a clear attempt to re-characterize the board's factual findings here regarding the priorities.

[00:05:34] Speaker 03:
Are you addressing the cross-appeal issues now?

[00:05:36] Speaker 04:
Yes.

[00:05:37] Speaker 03:
I think you have to wait.

[00:05:40] Speaker 04:
What's that?

[00:05:41] Speaker 03:
Are you able to address those at this point?

[00:05:42] Speaker 03:
I don't think you are.

[00:05:43] Speaker 03:
I think you have to wait.

[00:05:44] Speaker 03:
Mr. Cordell gets to address those.

[00:05:46] Speaker 04:
Okay.

[00:05:46] Speaker 04:
I can, let me shift topics.

[00:05:47] Speaker 03:
We're just talking about your appeal right now.

[00:05:51] Speaker 04:
So the board has also committed error in allowing a trial within a trial, making determinations regarding infringement.

[00:05:57] Speaker 04:
This error was compounded by instructing American national not to respond to infringement contentions, which were also wrongfully incorporated by reference by sleep number in violation of board rule 42.6A3.

[00:06:10] Speaker 04:
Then after instructing American national not to submit anything in response to the contention, the board finds a weak nexus established in part because of the unrebutted infringement contentions.

[00:06:21] Speaker 04:
Your honors.

[00:06:21] Speaker 03:
Even address this issue since you ultimately did win on this issue.

[00:06:26] Speaker 03:
Yeah.

[00:06:27] Speaker 04:
That was exactly my next comment.

[00:06:29] Speaker 04:
Your honors may view this point as moot.

[00:06:32] Speaker 04:
However, the Crossfield does also put this into play and there is a continuing harm to American national where we do return to district court.

[00:06:40] Speaker 04:
We're going to spend thousands upon thousands of dollars arguing evidentially to omit this particular material from evidence on that record.

[00:06:48] Speaker 04:
The other thing that's pointed to is that American national allegedly didn't even contend that these infringement contentious are wrong.

[00:06:57] Speaker 04:
And that's inaccurate.

[00:06:58] Speaker 04:
in our briefs opposing this.

[00:07:01] Speaker 03:
Just to be clear, it's really not infringement contentions.

[00:07:03] Speaker 03:
It's reading on for the purposes of showing nexus for commercial success.

[00:07:07] Speaker 03:
And the board actually corrected its opinion on that issue.

[00:07:10] Speaker 04:
Right.

[00:07:11] Speaker 04:
The board, yes, that's correct.

[00:07:13] Speaker 03:
That should be abundantly clear.

[00:07:15] Speaker 03:
I wouldn't say it was a finding on infringement.

[00:07:18] Speaker 04:
Well, so I struggle with the distinction between infringement and reading on.

[00:07:22] Speaker 04:
I think we all do.

[00:07:23] Speaker 03:
I think to your benefit in district court, you should say it's not a finding on infringement.

[00:07:28] Speaker 03:
I don't know why you wouldn't.

[00:07:30] Speaker 04:
Well, I think we certainly can say that.

[00:07:32] Speaker 04:
But the problem is that it's going to be trying to get into evidence that it reads on.

[00:07:37] Speaker 04:
And maybe the original decision did say infringement, which we did ask them to correct on rehearing.

[00:07:44] Speaker 03:
Isn't it different?

[00:07:44] Speaker 03:
Because there's different evidence being presented and such.

[00:07:48] Speaker 03:
Anyway, I don't know how much time you want to waste on whether it's infringement or reading on, but it seems to me it would probably be improper for us to address it, given that you won on the issue of obviousness.

[00:08:00] Speaker 04:
I guess it's somewhat similar to the pressure means that sleep number is in the previous case.

[00:08:05] Speaker 04:
Let me make one other point on this, though, and that is that A&M did represent in its briefs in opposition to the discovery that the issue of infringement are highly contested and patent owners' infringement contentions are deficient, vague, and ambiguous and raise issues of practicing the prior art.

[00:08:22] Speaker 04:
And you can see the sites to our briefs at 32.03 in the appendix and 32.19 in the appendix.

[00:08:31] Speaker 04:
Still further, the board permitted improper amendments to the claims that were not directly permissible under Section 102 and 103.

[00:08:39] Speaker 04:
Specifically, the board allowed amendment of the claims to incorporate subject matter from a prior patent, which is incorporated by reference, to bolster the claims against future Section 112 infringement arguments.

[00:08:49] Speaker 03:
Do you agree that certain, that the amendments were made, they also, even if there were additional changes that were made to address other issues,

[00:08:58] Speaker 03:
the amendments were made in response to a ground of unpatentability?

[00:09:02] Speaker 04:
Some of the amendments to the claims were, yes.

[00:09:05] Speaker 04:
Basically those claims added the multiplicative offset to them to overcome the evil reference.

[00:09:12] Speaker 04:
So yes, there were 102 and 103 amendments present.

[00:09:15] Speaker 04:
What we're taking contention with was the allowance of Section 112 amendments also being put in there.

[00:09:21] Speaker 03:
You read the

[00:09:23] Speaker 03:
PTO's regulation as restricting the amendment to one specific purpose.

[00:09:30] Speaker 04:
Yes, that being for 102 and 103.

[00:09:34] Speaker 04:
And if you look at the difference between our old interparties re-examination and what we have now with the interparties review, the interparties re-examination, you could amend claims to take on section 112.

[00:09:46] Speaker 04:
And you also had, and this is important here, the ability to amend the specification under the regs under the interparties re-examination.

[00:09:53] Speaker 04:
There's no regulations permitting the amendment of the specification here.

[00:09:56] Speaker 04:
And when you go back and you look at like the original examination of a patent, if you're going to take something from an incorporation by reference and you're going to put it in there, you've got to get that material into your specification.

[00:10:08] Speaker 04:
And that's provided under CFR 1.75D1 for the specification.

[00:10:13] Speaker 04:
in 1.83a for the drawings.

[00:10:16] Speaker 04:
We addressed section 1.83 in our oppositions to the NTA and in the blue brief at page 73.

[00:10:22] Speaker 04:
So the rules addressing initial examination permit incorporation material by reference, but insertion of the material into the claims is going to be required to be admitted into the spec and if need be the drawings.

[00:10:35] Speaker 04:
And there's just no provision to do that in the context of the inter-parties review.

[00:10:40] Speaker 04:
And I see I've gotten into my rebuttal time.

[00:10:42] Speaker 04:
So if I may reserve that for rebuttal.

[00:10:44] Speaker 03:
Yes, you can reserve your time.

[00:10:49] Speaker 03:
When you're ready.

[00:10:50] Speaker 01:
Thank you, Your Honors.

[00:10:51] Speaker 01:
And may it please the court.

[00:10:53] Speaker 01:
The director intervened on just two issues in this appeal.

[00:10:56] Speaker 01:
First is A&M's statutory and constitutional challenge to a sentence from the board's nexus decision.

[00:11:02] Speaker 01:
And that first issue, A&M was the prevailing party on secondary considerations.

[00:11:07] Speaker 01:
And they admit that their challenge

[00:11:09] Speaker 01:
does not seek to reverse or alter the board's judgment in any way.

[00:11:13] Speaker 01:
Accordingly, under this court's Skyhawk decision, they're not dissatisfied with the decision in the context of the appellate statute.

[00:11:21] Speaker 01:
So we'd ask that this court not entertain that challenge.

[00:11:24] Speaker 03:
Would you address the other issue, which is whether amendments may be made that even though

[00:11:30] Speaker 03:
The primary amendment relates to overcoming prior art.

[00:11:34] Speaker 03:
There's additional changes made that the PTO could see were related to written description and other issues.

[00:11:41] Speaker 01:
Of course, Your Honor.

[00:11:43] Speaker 01:
First we say this challenge is forfeited because A&M did not present this challenge to the board, so the board didn't address it.

[00:11:51] Speaker 01:
But the regulation does not limit amendments only to amendments that address a ground of unpatentability in the trial.

[00:12:02] Speaker 01:
It says that the amendment may be denied if the amendments do not address a ground of unpatentability in the trial.

[00:12:09] Speaker 01:
And I hear A&M admitting that

[00:12:11] Speaker 01:
Some of these amendments did respond to a ground of unpatentability in the trial and not challenging that.

[00:12:17] Speaker 01:
The board has a presidential decision interpreting its regulation that says not every change to words in the foreign amendment have to

[00:12:26] Speaker 01:
respond to a grant of unpatentability, they may also address potential 101 and 112 issues with claims.

[00:12:33] Speaker 01:
And there's simply no requirement for the board to police amendments by looking for possible 112 or 101 issues in the original claims before allowing a motion to amend.

[00:12:44] Speaker 01:
So if there are no questions, we would ask you not to reverse the board's grant of the motion to amend based outside of its regulatory authority.

[00:12:52] Speaker 01:
Thank you.

[00:12:55] Speaker 03:
Mr. Cordell.

[00:12:56] Speaker 00:
Thank you.

[00:12:56] Speaker 00:
May I please support Ruffin Cordell for a sleep number?

[00:12:59] Speaker 00:
In contrast to the last appeal, we do think the board made a couple of errors in this case.

[00:13:05] Speaker 00:
And we think that this is IPER that kind of got away from them, primarily in not holding A&M to its burdens in bringing the IPER petition in the first instance.

[00:13:20] Speaker 00:
So we've seen through this appeal several instances where the board filled in gaps,

[00:13:24] Speaker 00:
rose essentially to find evidence that, for whatever reason, A&M didn't present.

[00:13:30] Speaker 00:
And that's really the gravamen of where we are.

[00:13:33] Speaker 03:
One of the concerns I had relating to what you just said is that means plus function argument under the board's regulation.

[00:13:41] Speaker 03:
But the concern I have is this.

[00:13:43] Speaker 03:
Is your argument on cross-appeal an end-run around institution?

[00:13:48] Speaker 03:
Because if the petition should have had something in it,

[00:13:51] Speaker 03:
giving an explicit definition of a meansless function term.

[00:13:56] Speaker 03:
Isn't that something that would bar institution on that claim?

[00:13:59] Speaker 03:
I'm just concerned that it's an end run around institution, something that I don't have jurisdiction to consider.

[00:14:06] Speaker 00:
Well, I'd make two points.

[00:14:09] Speaker 00:
Number one, it is not, because it should have been, and those issues remain all through the case.

[00:14:14] Speaker 00:
any defect in A&M's affirmative burden presentation could be criticized during the PTAP proceedings or before this court.

[00:14:23] Speaker 00:
And then secondly, under CUSO, I agree with you, had they denied institution, this court would not have jurisdiction.

[00:14:30] Speaker 00:
I have several deep wounds I can show you for having run afoul of that, but the reality is they didn't deny institution, they granted institution and they made it to final written decision.

[00:14:40] Speaker 00:
And having done so, we can examine the bases upon which

[00:14:44] Speaker 00:
the proceeding proceeded.

[00:14:46] Speaker 00:
So CUSA doesn't tell us that you don't have jurisdiction if they went forward.

[00:14:51] Speaker 00:
It tells us you don't have jurisdiction if they denied it.

[00:14:54] Speaker 00:
And here they went forward.

[00:14:55] Speaker 00:
And importantly, the cadence of a PTAB proceeding is important.

[00:15:00] Speaker 00:
A&M comes forward with its petition, and it's supposed to have all its evidence and all its arguments right there.

[00:15:04] Speaker 00:
And this wasn't an incidental omission or oversight by A&M.

[00:15:09] Speaker 00:
It was

[00:15:10] Speaker 00:
the fundamental construction of one of the terms that ultimately was bandied about.

[00:15:15] Speaker 00:
The 474 petition has the to the extent language, where they parrot kind of, in case you come up with this construction, well, then we might have arguments about it.

[00:15:25] Speaker 00:
But that's as far as they went.

[00:15:27] Speaker 00:
In the 154 petition, they don't say anything.

[00:15:30] Speaker 00:
So I understand that this is a bit of a burden.

[00:15:34] Speaker 03:
It's the same term in both.

[00:15:36] Speaker 03:
It's a little bit of a technical.

[00:15:39] Speaker 03:
I agree.

[00:15:57] Speaker 03:
Yes.

[00:15:58] Speaker 00:
The reality is, again, I can show you some of those deep wounds where I have run afoul of perhaps a technical omission before the board and have been held to it.

[00:16:06] Speaker 00:
But it's important because we have very limited ability to address these issues.

[00:16:13] Speaker 00:
As the patent owner, you really have one shot and then a trial to put on evidence and address what has to be addressed.

[00:16:20] Speaker 00:
And so it's important that we hold the challengers to their burdens.

[00:16:25] Speaker 00:
The board chooses not to do so.

[00:16:29] Speaker 00:
But again, they're supposed to follow their own rules under the APA, right?

[00:16:32] Speaker 00:
We're supposed to know kind of the evidence and arguments with which we are confronted so that we can adequately respond.

[00:16:39] Speaker 00:
But I acknowledge it's a close call and it's within their discretion to do lots of things, but here we think that they really should have held A&M to its proofs.

[00:16:51] Speaker 03:
Why is it that you think that the petition doesn't address motivation to combine Giff, Mattel, and Pillsbury, and specifically to add Pillsbury?

[00:16:58] Speaker 03:
Because in looking at pages 89-30 to 31,

[00:17:01] Speaker 03:
It seems to me that there is some discussion of a reason for why.

[00:17:05] Speaker 03:
And it repeats, in fact, I guess, the reason that's in the board's opinion, which is about for increasing speed and accuracy of adjusting the pressure in the chamber.

[00:17:15] Speaker 00:
So I think what the board ultimately did is said it's analogous and said that there are goals that are discussed in all of these references.

[00:17:23] Speaker 00:
And the board went in and looked and found those goals.

[00:17:26] Speaker 00:
What ADEM should have done is they should have presented evidence in the first instance for why one of ordinary skill faced with this already somewhat extended combination of gift and metal would have then looked to Pillsbury.

[00:17:41] Speaker 00:
And that's what's missing.

[00:17:42] Speaker 00:
That's what we don't have.

[00:17:43] Speaker 00:
And it's not a question where they did it poorly or didn't do it particularly well.

[00:17:48] Speaker 00:
They discussed goals.

[00:17:49] Speaker 00:
They discussed the fact that it's analogous hard.

[00:17:52] Speaker 00:
But that's as far as it went.

[00:17:53] Speaker 03:
What about the fact that

[00:17:55] Speaker 03:
Pillsbury is described, at least by one of the experts, as being more explanatory of what Matal is teaching.

[00:18:02] Speaker 03:
In other words, it's a little bit redundant.

[00:18:04] Speaker 03:
It gives a little bit more detail.

[00:18:06] Speaker 03:
So you don't need to have another reason.

[00:18:09] Speaker 00:
Well, remember what Matal taught was ranges, right?

[00:18:12] Speaker 00:
It was inflating tires.

[00:18:16] Speaker 00:
The fundamental focus of Matau were really broad inflation ranges.

[00:18:21] Speaker 00:
The orders of magnitude we're talking about with Matau were much, much, much larger.

[00:18:26] Speaker 00:
And I would agree that Pillsbury was more apt in that it looked at perhaps the right pressure ranges and the right adjustment ranges, but we didn't have that in the petition, and we didn't have that before the board until really the final argument.

[00:18:41] Speaker 00:
And it was once again A&M's burden to come forward with that evidence in the first instance.

[00:18:45] Speaker 00:
They're not supposed to backfill.

[00:18:46] Speaker 00:
They're not supposed to rely on the board to become essentially super patent examiners who are looking through disclosures and finding evidence that might have been used had it been offered in the first instance.

[00:18:58] Speaker 00:
They are an adjudicated body.

[00:18:59] Speaker 00:
They are to call balls and strikes.

[00:19:01] Speaker 00:
And I acknowledge that there's a level of abstraction that has to obtain here.

[00:19:05] Speaker 00:
We can't have people file petitions that are 500 pages long.

[00:19:09] Speaker 00:
On the other hand, this is a key element.

[00:19:11] Speaker 00:
So Pillsbury forms every single combination that the board relied on.

[00:19:15] Speaker 00:
And that motivation to combine is just not there.

[00:19:18] Speaker 03:
Is it that the board's rationale and reasoning is at a pretty high level of abstraction?

[00:19:25] Speaker 03:
It doesn't take into account that Pilvary is talking about a blood pressure sensor and dust and determining whether it's actually using pressure measurement to determine whether there's dust on the valve?

[00:19:37] Speaker 00:
I think that's a big part of it.

[00:19:38] Speaker 00:
I mean, when I read, I had a hard time with Pillsbury.

[00:19:41] Speaker 00:
I think that the disclosure is terse, it is confusing, and it doesn't get you pretty much to anywhere other than the idea that perhaps you're going to make an adjustment to some parameter, and it's not particularly clear about which.

[00:19:53] Speaker 00:
But setting that aside, they need to confront the fact that you wouldn't look to a blood pressure cuff, which by definition only involves one side of the inflation-deflation cycle.

[00:20:04] Speaker 00:
Right?

[00:20:04] Speaker 00:
So the inflation cycle for a blood pressure cuff is just you pump it all the way up and then the deflation cycle is where the analysis takes place.

[00:20:12] Speaker 00:
That is a wholly different animal from a mattress which has to be tuned to the weight of a particular person or particular, you know, environment that it sits in.

[00:20:22] Speaker 00:
A blood pressure cuff is used with hundreds of people and the same cycle happens over and over again.

[00:20:27] Speaker 00:
The concern in Pillsbury was for a clogged filter, which I agree is really sort of distracts from the overall analysis and doesn't really tell us anything.

[00:20:36] Speaker 00:
But they needed to explain that leak.

[00:20:38] Speaker 00:
They needed to explain why we would take the GIFT reference, which is a mattress, and we would look to a blood pressure cuff that was concerned about a clogged filter.

[00:20:48] Speaker 00:
And had they had that evidence, we might not be having this discussion.

[00:20:51] Speaker 00:
But they didn't have it.

[00:20:52] Speaker 00:
They didn't put it in the petition.

[00:20:54] Speaker 00:
And the board didn't really find it either, ultimately.

[00:21:02] Speaker 02:
It's a slightly different question, though.

[00:21:04] Speaker 02:
So I think, as you can probably tell, opposing counsel is really concerned about infringement and wondering whether or not

[00:21:10] Speaker 02:
You're intending to argue in the district court that the board's nexus find you somehow probative.

[00:21:15] Speaker 00:
The answer is no.

[00:21:16] Speaker 00:
We had no such intention.

[00:21:17] Speaker 00:
We believe Skyhawk applies here just as it does in the last appeal.

[00:21:21] Speaker 00:
We tried to make that fairly clear.

[00:21:24] Speaker 00:
And as Judge Stoll points out, they didn't find infringement.

[00:21:26] Speaker 00:
They found that it reads on.

[00:21:27] Speaker 00:
And the fact that the board did an analysis that is similar to something that might happen in district court is not unusual, right?

[00:21:34] Speaker 00:
Industry praise would be used in damages analyses in district court.

[00:21:38] Speaker 00:
We have lots of those issues.

[00:21:40] Speaker 00:
So we don't think it qualifies.

[00:21:41] Speaker 00:
But to answer your question, we don't plan to argue that they were stopped, for example, in district court.

[00:21:48] Speaker 00:
I didn't really do much on my appeal other than Pillsbury.

[00:21:52] Speaker 00:
But if there are any other questions?

[00:21:55] Speaker 03:
Questions?

[00:21:56] Speaker 00:
OK.

[00:21:56] Speaker 03:
Thank you, Mr. Cadell.

[00:21:58] Speaker 03:
Elliot, you have a little under five minutes.

[00:22:03] Speaker 04:
Thank you, Your Honor.

[00:22:04] Speaker 04:
My apologies.

[00:22:06] Speaker 04:
The first thing I'd like to address, Your Honor, is the field of the invention here.

[00:22:10] Speaker 04:
and it is inflatable objects, which includes Pillsbury.

[00:22:13] Speaker 04:
That field of the invention is stated in the patent itself, right up front in where you'd normally find the field of invention section.

[00:22:20] Speaker 04:
Then shifting to what Pillsbury does and the teachings to combine in

[00:22:28] Speaker 04:
Dr. Finney's analysis, American National's expert's analysis, he determined that the principles of these solutions could be applied to air mattresses.

[00:22:36] Speaker 04:
The specific quote is, Dr. Finney explains that a person of ordinary skill would thus realize that different applications do not affect the underlying compensation principles for the utility.

[00:22:47] Speaker 04:
In other words, these formulas and everything with the pressure controls, those are agnostic as to whether it's a 40-60 PSI system or a 0.6 PSI system such as an air mattress.

[00:23:01] Speaker 04:
Sleep Number also wants this tribunal to disturb the board's determination that the prior art teaches pressure monitoring means, alleging that the construction of the term pressure monitoring means was inadequate.

[00:23:11] Speaker 04:
However, as the court has pointed out, 37 CFR 42.104b3 cited by Sleep Number is a gatekeeping rule.

[00:23:21] Speaker 04:
and the board's institution section, excuse me, the board's institution decision is not reviewable per statute.

[00:23:28] Speaker 04:
So, a sleet number suggests in the alternative that including this limitation, any claims including this limitation should be held valid for this alleged failure.

[00:23:37] Speaker 04:
Again, however, the rule cited is a gatekeeping rule.

[00:23:39] Speaker 04:
and does not mandate a format for construction that must be provided in order to apply prior art against a limitation.

[00:23:46] Speaker 04:
And indeed, the limitation here at issue, it is not key.

[00:23:50] Speaker 04:
The pressure sensing means it's very old, very well known, and very clearly taught by all the prior art references.

[00:23:57] Speaker 04:
Taking the 172 gift patent as an example in column four, lines 33 through 37, it describes a pressure monitoring port 146

[00:24:06] Speaker 04:
to receive a small tube which conveys pressure to a pressure sensor.

[00:24:11] Speaker 04:
The tube and sensor are unnumbered and unillustrated.

[00:24:14] Speaker 03:
I want to make sure I understand what you're saying.

[00:24:16] Speaker 03:
You're saying, first of all, this is a gatekeeping rule, so this court shouldn't consider it.

[00:24:19] Speaker 03:
But second of all, even if this court does, the answer to how this means to function limitation should be construed is so clear and apparent that you didn't have to satisfy the regulation.

[00:24:31] Speaker 04:
Not that we didn't have to satisfy it.

[00:24:33] Speaker 04:
I think the board found that we did have to satisfy it.

[00:24:35] Speaker 04:
I'm just trying to counter the emphasis that opposing counsel is putting on this as a key limitation that it isn't.

[00:24:41] Speaker 04:
That it was easy to find exactly what this meant and what the structure was in any of the prior art references.

[00:24:47] Speaker 03:
I get it.

[00:24:47] Speaker 03:
Okay, but how did you satisfy the regulation?

[00:24:50] Speaker 04:
So if you look to your appendix sites for the constructions that were provided

[00:25:01] Speaker 03:
Appendix and specifically for I understand that to be to extent that language I'm talking about the other IPR.

[00:25:09] Speaker 04:
That's the one I have more concerns about Well, let me give you the sites I've got and if they're not directed to that IPR I'll have to provide those sites to you at a later time your honor The appendix sites that I have are nine five five Three one two

[00:25:32] Speaker 04:
And then 910, then 307, 1132, and 1226.

[00:25:39] Speaker 04:
And these are sites to your petition?

[00:25:49] Speaker 04:
These are sites to petition and to, I believe, supporting material in the other documents.

[00:26:00] Speaker 03:
Mr. Elliott, I'm going to give you two more minutes because I'm going to give Mr. Cordell two more minutes since we've asked a lot of questions.

[00:26:06] Speaker 03:
So if you want to address anything else, please go ahead.

[00:26:09] Speaker 04:
Thank you, Your Honor.

[00:26:12] Speaker 04:
Shifting to Pillsbury again, while Sleep Number asserts that American National failed to indicate the role Pillsbury plays, American National clearly states that Pillsbury teaches updating the offset to determine a target pressure and expressly calculating the error in the pressure adjustment factor.

[00:26:30] Speaker 04:
You can see this in the discussion of the combination at Appendix 942 through 946, and 1008 through 1011.

[00:26:38] Speaker 04:
Sleep Number criticizes the petition for not providing a reason to use Pillsbury, but they are merely re-arguing the failed position before the Board, which you can see in the Board's final written decision at Appendix 63 through 65, and for the other IPR at 208 through 210.

[00:26:56] Speaker 04:
Sleep number is taking liberty with some deposition soundbites that the expert recited and ignores the statements in the petition that the board recognized in the final written decision.

[00:27:07] Speaker 04:
And indeed, the final written decision notes that even sleep number agree or sleep number argues that Pillsbury explicitly calculates an error.

[00:27:15] Speaker 03:
And then the board goes on to... Can I ask you...

[00:27:18] Speaker 03:
looking at Pillsbury and its disclosure, where it talks about you want to determine if there's an offset, you will use that offset value.

[00:27:30] Speaker 03:
That offset value will be indicative of large resistances in the pneumatic system.

[00:27:35] Speaker 03:
And it talks about determining using that, as I understand it, maybe I'm misreading your reference, but to figure out if there's dust and different things on maybe the valve.

[00:27:45] Speaker 03:
How do you respond to that?

[00:27:49] Speaker 03:
analysis is at a level of abstraction that doesn't really deal with this issue of whether it's what this reference is teaching.

[00:27:57] Speaker 04:
So what the reference is teaching is that the system changes over time.

[00:28:01] Speaker 04:
You do, as we discussed earlier, you get dust buildup.

[00:28:04] Speaker 04:
And so that changes the resistance.

[00:28:06] Speaker 04:
And so Pillsbury teaches using an offset in order to compensate for that adjustment over time.

[00:28:12] Speaker 04:
And so it's teaching exactly what the 154 and 747 patents were approaching.

[00:28:19] Speaker 04:
And that is, how do I compensate for a system that can change over time?

[00:28:23] Speaker 04:
You're going to get dust in any system because you're pulling air from the ambient.

[00:28:27] Speaker 04:
And so it does change over time.

[00:28:28] Speaker 04:
In the case of a mattress, you also might have the mattress articulated in a given point.

[00:28:32] Speaker 04:
And that articulation is also going to change the system.

[00:28:35] Speaker 04:
And so the system would have to adjust for that.

[00:28:41] Speaker 03:
You're out of time.

[00:28:42] Speaker 03:
Do you have anything, one sentence maybe that you want to make to wrap it up?

[00:28:47] Speaker 04:
Just on the burden of proof on invalidity, if I may.

[00:28:52] Speaker 04:
This was an attempt to re-characterize.

[00:28:53] Speaker 03:
This is one sentence.

[00:28:55] Speaker 04:
This is an attempt to re-characterize the board's actual findings regarding the prior art, which were reviewed for substantial evidence.

[00:29:01] Speaker 04:
Thank you, Your Honor.

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

[00:29:03] Speaker 03:
Please give Mr. Crudell two minutes.

[00:29:05] Speaker 03:
Thank you.

[00:29:07] Speaker 00:
May it please the Court.

[00:29:08] Speaker 00:
Returning to Pillsbury, I mean, again, the fundamental problem that we have with much of what the board did is that motivation to combine is not a lesser included defense.

[00:29:18] Speaker 00:
There needs to be specific evidence and argument that tells us why we would look to a clogged filter blood pressure cuff

[00:29:24] Speaker 00:
to modify the basic combination, why we would look to a sensor error patent like an evil to decide that we would use it to adjust a situation where we're deducing pressure at a enclosure in a mattress that is extended over tubes and other pneumatic resistive devices.

[00:29:48] Speaker 02:
What's your response to his field of invention argument that he just made a few minutes ago?

[00:29:53] Speaker 00:
The field of the invention is part of it.

[00:29:57] Speaker 00:
If he had been looking to jet engines or something, I would say that would be a bigger problem.

[00:30:05] Speaker 00:
But that's not enough.

[00:30:07] Speaker 00:
The fact that his expert says, if you're inflating something, you're always inflating something, no matter what it is.

[00:30:13] Speaker 00:
This art has got too many different options in it.

[00:30:17] Speaker 00:
This is not one where the field is that nascent.

[00:30:21] Speaker 00:
And so when we're talking about combining a mattress with tire inflation with remote sensor versus local sensor error correction, and then now we're going to a remote air pressure

[00:30:36] Speaker 00:
I'm sorry, blood pressure cuff with clogged air filters, there are leaps there that need to be explained, and they need to be addressed.

[00:30:45] Speaker 00:
So I acknowledge that I have a substantial evidence burden in attacking this, but the reality is there should have been some evidence.

[00:30:52] Speaker 00:
They should have explained to us why one of ordinary school in the art would say, oh, blood pressure cuffs, of course.

[00:30:58] Speaker 00:
That's where you would go for this kind of invention, this kind of analogy.

[00:31:04] Speaker 00:
And that's just missing.

[00:31:06] Speaker 00:
So it's really not a question of substantial evidence.

[00:31:09] Speaker 00:
There's really just no evidence.

[00:31:10] Speaker 00:
And if I could make one last point, Your Honor, I went through counsel's recitations of the appendix.

[00:31:17] Speaker 00:
And only one of them, I think 1226, relates to the 154.

[00:31:20] Speaker 00:
Thank you.

[00:31:23] Speaker 03:
Thank you.

[00:31:25] Speaker 03:
Thank you for the good quality argument.

[00:31:28] Speaker 03:
We appreciate it.

[00:31:29] Speaker 03:
The cases are submitted on the record.