[00:00:00] Speaker 03:
The appellant has waived oral argument.

[00:00:12] Speaker 03:
And so we will hear directly from the appellee, Mr. Nolan.

[00:00:17] Speaker 00:
Thank you, Your Honors.

[00:00:18] Speaker 00:
Brian Nolan on behalf of Appellee Hemosonics LOC.

[00:00:25] Speaker 00:
If it pleases the court, this

[00:00:29] Speaker 00:
case relates to a PTAB decision in which the PTAB had a final written decision holding claims 1 through 40 of United States Patent 9, 915-671, unpatentable.

[00:00:42] Speaker 00:
It was based on two references.

[00:00:44] Speaker 00:
One is referred to as a patent, Braun 209, that discloses.

[00:00:49] Speaker 00:
a cartridge-based system with multiple chambers.

[00:00:52] Speaker 01:
OK, let me interrupt you, just because time is short.

[00:00:55] Speaker 01:
This is Judge Prouse speaking.

[00:00:57] Speaker 01:
It seems that the other side, absent today, so we appreciate your coming, points out that the board's decision is not a model of clarity when it comes to reasonable expectation of success.

[00:01:11] Speaker 01:
And so can you point us in the final written decision to where the board analyzed the evidence from you and your friend on the other side on the reasonable expectation of success?

[00:01:25] Speaker 01:
It's kind of a little garbage, right?

[00:01:27] Speaker 00:
Yes, Your Honor.

[00:01:27] Speaker 00:
And I think that we could look at two places in the final written decision.

[00:01:31] Speaker 00:
First, I think if you look at appendix 34, 35, and 36,

[00:01:37] Speaker 00:
in which the board talks about the motivation to combine and talks about the overlap that you see between the Braun 2002-09 patent and the Lang 2006.

[00:01:55] Speaker 00:
And in particular, it finds that both of these devices use well-known reagents.

[00:02:04] Speaker 00:
There's overlap in the reagents.

[00:02:06] Speaker 00:
The cartridge-based system of Braun 209 is being used for the exact advantages that are disclosed.

[00:02:14] Speaker 00:
And those advantages are that it's quicker, it's repeatable, it's reliable, it overtakes.

[00:02:21] Speaker 00:
And this is right in Braun, if you look at the disclosure in Braun.

[00:02:25] Speaker 00:
And then it looks at and it talks about

[00:02:29] Speaker 00:
the Lang device, the Lang 206.

[00:02:32] Speaker 00:
And Lang 206 is a well-known interrogation-based technique.

[00:02:36] Speaker 00:
And after they lay out the overlap and they lay out the reasons to combine, they do discuss later on in the opinion the reasonable expectation of success.

[00:02:47] Speaker 00:
And after having laid out all this evidence, if you go to APX 49 of the appendix, you'll see that they talk about

[00:02:58] Speaker 00:
And I think this is, in the first full paragraph, petitioners demonstrated by preponderance of the evidence that one of skill in the art would have been motivated to combine broad 209 and length 2006 and would have the reasonable expectation of that combination.

[00:03:13] Speaker 00:
This is based on all the evidence that precedes it.

[00:03:15] Speaker 00:
It's based on the overlap that we just discussed.

[00:03:18] Speaker 00:
It's also based on KSR, which KSR says, when you're using the devices,

[00:03:24] Speaker 00:
for what they used in the prior art.

[00:03:26] Speaker 00:
And here, we're using Braun 209 for the convenience of the cartridge, for the repeatability of it.

[00:03:31] Speaker 00:
It is a mechanical probe of a magnet going up and down that's measuring resistance as the blood goes under coagulation.

[00:03:38] Speaker 00:
And we're using Lang 2006 for another, the physical interrogation techniques of multiple

[00:03:46] Speaker 00:
samples, one sample that is allotted into multiple different cups to be measured.

[00:03:52] Speaker 00:
And so the reasonable expectation of success that the board finds flows from this concept of you're just using the prior art for the exact same rationale that it was.

[00:04:02] Speaker 00:
And they lay out the motivation to combine, as I said, in 34, 35, and 36.

[00:04:07] Speaker 00:
of the appendix.

[00:04:08] Speaker 00:
And they talk throughout this of why those combinations would go together.

[00:04:14] Speaker 00:
And I think that's where the board has found that the reasonable expectation of success flows from, Your Honor.

[00:04:22] Speaker 02:
The appellant in the gray brief at page 25 of the gray brief says that the panel's dispositive factual error is that Lange 2006 measures viscosity.

[00:04:34] Speaker 02:
Is that an error and is it dispositive?

[00:04:38] Speaker 00:
In all due respect, I think line 2006 measures viscoelasticity, because that's the rotent tag.

[00:04:44] Speaker 00:
That's the article.

[00:04:46] Speaker 00:
I think they may have meant that said Braun, 2009, they attribute that to being only a viscosity measurement.

[00:04:55] Speaker 00:
And I don't think it is an error, Your Honor.

[00:04:56] Speaker 00:
Because what the board did, I think what the appellant is suggesting is an error.

[00:05:02] Speaker 00:
Because if you look at what they said about visceral elastic property, they offered a new kind of claim construction that says clotting time is not covered.

[00:05:10] Speaker 00:
That was covered.

[00:05:11] Speaker 00:
was questioned specifically in the oral argument on what viscoelastic property meant.

[00:05:16] Speaker 00:
They agreed that Braun 209, and this would be, if you look at the oral argument record right at, this is APX 478, they're asked, do you agree that Braun at least measures the viscoelastic property, namely clotting time?

[00:05:35] Speaker 00:
And then if you go on in the next page, APX 479,

[00:05:41] Speaker 00:
The answer is yes, that was their argument in an earlier IPR, which they adopted here.

[00:05:47] Speaker 00:
And you can see that adoption in APX 232.

[00:05:52] Speaker 00:
There's the adoption in the papers before the board.

[00:05:56] Speaker 00:
But they acknowledge that Braun mentioned some viscoelastic properties.

[00:05:59] Speaker 00:
That is what

[00:06:01] Speaker 00:
appellant's counsel said before the board.

[00:06:03] Speaker 00:
And so if Braun is measuring some viscoelastic properties and Lang is teaching you a different testing method that clearly gives you more information

[00:06:13] Speaker 00:
about the viscoelastic properties because it measures more than just viscosity, you'll see the rationale for putting them together and the expectation.

[00:06:22] Speaker 00:
They're measuring different aspects of the blood clotting cascade.

[00:06:27] Speaker 02:
So does LANG measure viscosity or it does not measure viscosity?

[00:06:31] Speaker 00:
Well, LANG measures viscoelastic properties, and viscosity is one of it, because if the blood starts out as a fluid, it increases its viscosity as the fibrin and the white blood cells come together and form a matrix.

[00:06:45] Speaker 00:
And as that matrix is formed, it transitions to

[00:06:48] Speaker 00:
more elastic.

[00:06:49] Speaker 00:
And so viscosity is along the chain of viscoelastic properties.

[00:06:53] Speaker 00:
You have to kind of start with viscosity, then you get to elasticity, and then eventually the fibrin and white blood cells break apart and you return to a more fluid state.

[00:07:04] Speaker 00:
So the blood is no longer viscoelastic because the clot has dissolved.

[00:07:12] Speaker 00:
Now I could take you through

[00:07:14] Speaker 00:
why we think they've erred on their two main arguments.

[00:07:16] Speaker 00:
But I appreciate that your time is important.

[00:07:21] Speaker 00:
And if you think that would be helpful, I certainly would do it.

[00:07:24] Speaker 00:
But if you think that I've resolved any questions that this panel has, then I concede the rest of my time.

[00:07:30] Speaker 00:
I defer to the court on that.

[00:07:33] Speaker 03:
I have a quick question.

[00:07:35] Speaker 03:
Is commercial success a factor, an issue, still here on this appeal?

[00:07:41] Speaker 00:
I don't believe so, Your Honor, for a few reasons.

[00:07:44] Speaker 00:
One is that, first of all, the appellant never really linked up that the commercial success is due to any of the attributes of the claims.

[00:07:56] Speaker 00:
The person who put the commercial success argument in never looked at the claims, never did an analysis, just was told from the lawyers that we wanted you to say that there's sales of this other device.

[00:08:08] Speaker 00:
And our technical expert never did an analysis to know whether their Rotem device actually had practiced this.

[00:08:17] Speaker 00:
But more importantly, what the board found is that the only commercial success, the only reason why

[00:08:23] Speaker 00:
the Rotem Sigma, the subsequent device, may have more sales than the Rotem Delta, the earlier device, was this cartridge-based system, the convenience of the cartridge.

[00:08:32] Speaker 00:
And the board found that the convenience of the cartridge is disclosed right in the prior art.

[00:08:39] Speaker 00:
It's disclosed in Braun.

[00:08:40] Speaker 00:
And if I could point you to, in Braun, to only- Is it the law to interrupt you?

[00:08:46] Speaker 03:
The law is the invention as a whole, not which particular piece is in fact

[00:08:53] Speaker 03:
correct in terms of these secondary considerations?

[00:08:57] Speaker 00:
I do think the law is at its intervention at the whole.

[00:09:01] Speaker 00:
But if the commercial success derives from something that is in the prior art, like the board had found, then there is no nexus between the claim as a whole and the commercial success here.

[00:09:13] Speaker 00:
And just more importantly, I think there was just a failure on the appellant's part to really put forward any evidence that shows that Rotem Sigma, the device they say is commercial success,

[00:09:23] Speaker 00:
is practicing the claims that have been challenged here.

[00:09:26] Speaker 00:
They just didn't do that.

[00:09:28] Speaker 00:
And so the only thing they said is Rotem Sigma differs from Rotem Delta because Rotem Sigma has a cartridge that is convenient.

[00:09:37] Speaker 00:
And the board found, well, that's in the prior audit.

[00:09:40] Speaker 00:
That's what your argument is.

[00:09:42] Speaker 00:
That's in the prior audit because Braun 209 in column 3 of it lays out what the problem in the art is and explains why its cartridge system overcomes that.

[00:09:54] Speaker 03:
OK, any more questions for Mr. Navarro?

[00:09:56] Speaker 03:
No, thank you.

[00:09:57] Speaker 00:
No, thank you.

[00:09:58] Speaker 00:
Your Honor, as well, I thank you for your time and hearing me today.

[00:10:01] Speaker 00:
Thank you.

[00:10:03] Speaker 01:
OK, thank you.