[00:00:00] Speaker 01:
Our next case is Everstock Merchandising versus Willis Electric, 2021, 1882.

[00:00:09] Speaker 01:
Mr. Babcock.

[00:00:26] Speaker 04:
Good morning again, Your Honors.

[00:00:27] Speaker 04:
Brent Babcock with Loeb & Loeb.

[00:00:30] Speaker 04:
for the appellant Everstar, the PGR petitioner at the PTAT.

[00:00:37] Speaker 04:
So this case, although the same parties, is unrelated to the first case.

[00:00:44] Speaker 04:
And in this case, the board determined in its final written decision that the claims were not unpatentable.

[00:00:56] Speaker 04:
And there's three issues that we've raised in the briefs.

[00:00:59] Speaker 04:
summarized here three errors that the board committed in reaching its conclusion.

[00:01:07] Speaker 04:
The first error is looking at two different reasons to combine.

[00:01:10] Speaker 04:
There's the increased durability reason to combine and there's the decreased cost reason to combine.

[00:01:18] Speaker 04:
In a summary sentence,

[00:01:23] Speaker 04:
Everstar said Patents would have been obvious because it would have been for increased durability and decreased cost with the conjunction and The board said well you said and

[00:01:34] Speaker 04:
Therefore, we're only going to consider those in conjunction.

[00:01:37] Speaker 04:
Because durability fell, cost necessarily fell.

[00:01:40] Speaker 04:
Decreased cost necessarily fell.

[00:01:42] Speaker 04:
And we go through, I'll walk you through a little bit today, where it's very clear that Eberstar did not argue those two concepts conjoinly, but they argued those two concepts independently.

[00:01:54] Speaker 04:
So the board erred by saying they could only consider them together.

[00:01:59] Speaker 02:
Could I understand this better?

[00:02:01] Speaker 02:
We're talking about a primary reference here of Kumada, which is a met light string configuration for use on trees.

[00:02:13] Speaker 02:
And as I understand it, in Kumada, they saved on the cloth copper wire by using non-conductive wire wrapped around the outside of the copper wire.

[00:02:29] Speaker 02:
Correct.

[00:02:29] Speaker 02:
Correct.

[00:02:30] Speaker 02:
And the patent here has a different solution to what seems to be the same problem by using a polymer wrapped around the copper wire inside.

[00:02:48] Speaker 02:
Inside the insulation.

[00:02:49] Speaker 02:
Inside.

[00:02:50] Speaker 04:
Yeah.

[00:02:50] Speaker 02:
Right.

[00:02:52] Speaker 02:
And what you argued in the petition

[00:02:55] Speaker 02:
in which I understand the board to have commenced the proceeding is a theory that putting the polymer non-conductive material inside the fire was a simple substitution for the other solution of putting it outside the fire, correct?

[00:03:19] Speaker 04:
That's essentially correct, Your Honor.

[00:03:21] Speaker 04:
The blade has showed the polymer fibers inside the insulation.

[00:03:26] Speaker 04:
Kamada had everything else, but not the internal polymer.

[00:03:30] Speaker 04:
So that combination gave everything.

[00:03:32] Speaker 02:
So it seems to me that we're talking about cost savings over twisted wire, but twisted wire is not one of the references here.

[00:03:43] Speaker 02:
and durability, I'm not sure that you argued that the configuration using the bladis is more durable than the Kamada reference.

[00:03:59] Speaker 02:
What seems to me involved here is that it's a simple substitution of putting the reinforcement inside the wire as opposed to outside the wire and that that's

[00:04:10] Speaker 02:
what the issue is here and that really didn't get addressed by the board.

[00:04:13] Speaker 02:
Am I mistaken about that?

[00:04:15] Speaker 04:
Well, I think the board kind of conflated the two and said that it would be a simple substitution and the reason would be to increase the durability of the Kamata wire and to decrease its cost.

[00:04:31] Speaker 02:
I don't see that there was really an argument that there was a cost-saving or a durability advantage over Kumada in making the combination, that what we have here is a situation in which moving the reinforcement from outside the wire to inside the wire was a simple substitution that achieved the same objectives that were achieved by Kumada.

[00:04:58] Speaker 02:
Am I mistaken about that?

[00:05:00] Speaker 04:
It was a simple substitution to obtain a, when you have two external cord and a wire, that's not exactly the same as having the polymer strand on the inside.

[00:05:17] Speaker 04:
So the board didn't, the board did

[00:05:20] Speaker 04:
look at the substitution, but then it said, in order to get to a sub, why would you substitute?

[00:05:26] Speaker 04:
Why would you make the substitution?

[00:05:27] Speaker 04:
What's the reason to combine under KSR?

[00:05:30] Speaker 02:
And the board said, well, that reason is... Well, KSR seems to suggest that you don't need a reason if it's a simple substitute.

[00:05:38] Speaker 04:
Well, you know, we didn't argue that.

[00:05:42] Speaker 04:
So, again, I don't want to advocate here for a position that wasn't advocated below.

[00:05:47] Speaker 02:
You didn't argue that.

[00:05:47] Speaker 02:
I thought you did argue that.

[00:05:48] Speaker 02:
Well, we argue... Wait, wait.

[00:05:50] Speaker 02:
In the petition, the way I read the petition, you argue simple substitution.

[00:05:56] Speaker 04:
We did.

[00:05:56] Speaker 04:
There is a statement, but then we go on to explain why that substitution would make sense to a person of skill in the art.

[00:06:08] Speaker 04:
And the decision on institution, which is kind of the starting grounds for the

[00:06:16] Speaker 04:
is what we did on page 11 of our gray brief is we looked at what the board said in the decision institution and how they set up

[00:06:28] Speaker 04:
the trial, the issues in the trial.

[00:06:30] Speaker 04:
And we try to color code the site.

[00:06:33] Speaker 04:
So the board says that for purposes of institution, which is not the same as the final decision.

[00:06:40] Speaker 02:
I'm having trouble, because I don't see that there is an argument that there's a cost saving by using dublenis over commodity.

[00:06:50] Speaker 02:
Nor do I see that there's an argument that there's a durability advantage in using debilitis over Kumada.

[00:07:02] Speaker 02:
It's rather that it achieves the same durability and the same cost savings that is found in Kumada.

[00:07:12] Speaker 04:
The slight nuance, Your Honor, is that when you just look at Kumada's wire alone, it has to have a certain amount of strength

[00:07:20] Speaker 04:
in and of itself, and durability, and it's going to have a certain amount of copper in it to begin with.

[00:07:26] Speaker 04:
That's just going to be required in order for it to be a standard wire.

[00:07:30] Speaker 04:
It has to be a certain gauge wire that has to be used.

[00:07:35] Speaker 04:
And so even if you put a rope around it, that doesn't really affect

[00:07:39] Speaker 04:
what that wire has to be, or at least that conducting wire still has to meet certain parameters.

[00:07:45] Speaker 02:
But I don't think you're responding to my question.

[00:07:47] Speaker 02:
What I'm saying is that the question is, was there a motivation to improve on Kumada?

[00:07:55] Speaker 02:
And what I see is that the same cost saving

[00:07:59] Speaker 02:
exists in Kumada as in the combination and the same durability exists in Kumada as in the combination.

[00:08:11] Speaker 02:
So it's really a simple substitution situation rather than the particular advantages of doing it with the internal reinforcement as opposed to the external reinforcement.

[00:08:25] Speaker 04:
I would agree that you could stop at the simple substitution and say, yes, that's simple enough.

[00:08:31] Speaker 04:
But the argument that was made below is that if you just focus on the conducting wire of commodity, which has a certain amount of copper in it,

[00:08:39] Speaker 04:
You can actually make Kamada with the external wire, but you can make it with less copper if you put a polymer strand in the conducting wire itself.

[00:08:48] Speaker 02:
Less copper than in Kamada?

[00:08:50] Speaker 04:
Yes, because Kamada has one conducting strand and one supporting strand.

[00:08:57] Speaker 04:
One wraps down.

[00:08:58] Speaker 04:
But if you actually took the conducting strand, you could actually make that wire with less copper.

[00:09:05] Speaker 02:
Where do I find that?

[00:09:07] Speaker 04:
Well, that's the reason to combine.

[00:09:08] Speaker 02:
No, no, but in the record.

[00:09:11] Speaker 02:
Where did you present evidence that there's a cost saving over Kumada by reducing the diameter of the copper wire?

[00:09:24] Speaker 04:
So our brief goes through all of the times post-institution where we went through and explained how... No, no, just show me.

[00:09:33] Speaker 02:
Show me where.

[00:09:35] Speaker 02:
Show me where there's evidence that there's a cost saving over Kamada by doing the internal reinforcement.

[00:09:48] Speaker ?:
OK.

[00:09:52] Speaker 04:
So we began to outline the issues in our blue brief on page 29, where we started.

[00:10:02] Speaker 04:
This is all about the cost savings by using less copper.

[00:10:07] Speaker 02:
But less copper than Kamada.

[00:10:08] Speaker 02:
Where does it say less copper than Kamada?

[00:10:12] Speaker 04:
Well, so Kamada is there for all the limitations, except for that wire.

[00:10:22] Speaker 04:
Okay, so the bladest, the bladest is there to say less copper makes it cheaper.

[00:10:29] Speaker 02:
But less copper than Kumada?

[00:10:31] Speaker 04:
Yes.

[00:10:32] Speaker 02:
What does it say that the bladest uses less copper than Kumada?

[00:10:38] Speaker 04:
Well, there are different references.

[00:10:40] Speaker 04:
So the bladest doesn't reference Kumada.

[00:10:42] Speaker 04:
But what the bladest says is you can make a wire that does the same thing cheaper by using less copper.

[00:10:49] Speaker 01:
Does it mean less copper than conventional?

[00:10:52] Speaker 04:
Yes.

[00:10:53] Speaker 04:
That's exactly what the bladest says.

[00:10:55] Speaker 03:
Don't you mean a different grade?

[00:10:57] Speaker 03:
No.

[00:10:58] Speaker 03:
AWG?

[00:11:01] Speaker 04:
Oh, a different... Well... A gauge.

[00:11:03] Speaker 04:
A different gauge.

[00:11:04] Speaker 04:
That's what the bladest teaches, is that if you have a given wire, and you can actually reduce the amount of copper, the gauge of the copper, by inserting instead of replacing the copper, you can put in polymer fibers.

[00:11:19] Speaker 04:
And that reduction in copper is a cost savings.

[00:11:23] Speaker 02:
That's an advantage over the twisted wire solution that was conventional.

[00:11:28] Speaker 02:
But that's not what Kumada is.

[00:11:30] Speaker 02:
Kumada is not a twisted wire solution.

[00:11:34] Speaker 02:
It's having reinforcement on the outside of the wire.

[00:11:39] Speaker 02:
But Kamada still has a conducting wire.

[00:11:42] Speaker 02:
Yeah.

[00:11:43] Speaker 02:
Where do we find that there's less conducting wire as a result of adopting the Deblatis solution?

[00:11:52] Speaker 04:
That's exactly what we argue.

[00:11:55] Speaker 03:
Well, I'm asking you to show me.

[00:11:57] Speaker 02:
Okay.

[00:11:57] Speaker 02:
Show me where it says that that's an advantage here, that by using the latest solution, you have less copper wire than a Kumata.

[00:12:07] Speaker 04:
Okay, Your Honor.

[00:12:07] Speaker 04:
So, on page 31, we have some other quotes in our blue brief.

[00:12:12] Speaker 04:
The BLATUS 120 teaches that copper is becoming ever more expensive.

[00:12:17] Speaker 04:
Important to find new capability.

[00:12:19] Speaker 02:
There's absolutely a discussion of saving copper wire.

[00:12:24] Speaker 02:
It's a cost saving and it's desirable.

[00:12:26] Speaker 02:
No question about it.

[00:12:28] Speaker 02:
Where does it say that by using the BLATUS solution, we're saving copper wire from Kumada?

[00:12:37] Speaker 04:
That was the argument, is that you would combine.

[00:12:40] Speaker 02:
Where does it say that?

[00:12:41] Speaker 02:
I don't find that.

[00:12:56] Speaker 01:
Do you want to find it for rebuttal?

[00:12:59] Speaker 04:
Sure.

[00:13:00] Speaker 04:
Sure, Your Honor.

[00:13:01] Speaker 04:
Oh, we're getting to time.

[00:13:03] Speaker 04:
The question here, though, is, Your Honors, is did the board even consider that issue?

[00:13:11] Speaker 04:
The board said first, because you argued only durability and cost together, I'm only going to consider them together.

[00:13:19] Speaker 04:
The board would consider them together, and therefore the board said we're not going to consider reduced cost.

[00:13:23] Speaker 04:
But more importantly, the board said, oh, reduced cost wasn't specifically set forth in the petition.

[00:13:30] Speaker 04:
Therefore, it's a new argument on reply, and we're not going to consider it at all.

[00:13:35] Speaker 04:
So the board did not even consider the issues that you're raising, Judge Dyke.

[00:13:39] Speaker 04:
The board did not even consider reduced cost, did not consider the evidence, because they said, we're considering it to be a brand new argument on reply for the first time.

[00:13:49] Speaker 04:
Therefore, we're going to exercise our discretion to exclude the argument altogether.

[00:13:53] Speaker 03:
Do you agree that she did not make the argument in the petition?

[00:13:57] Speaker 04:
I do.

[00:13:58] Speaker 04:
It was not expressly set forth in the petition.

[00:14:00] Speaker 04:
But the question here, Your Honor, is that once the board clearly raised it in the DI, in the institution decision, the board clearly relied upon it in the DI to say, we're going to institute on this basis.

[00:14:14] Speaker 04:
It was then raised in our deposition of our witness.

[00:14:18] Speaker 04:
It was raised by Willis in the Patent on our Response.

[00:14:21] Speaker 04:
It was raised in their expert declarations.

[00:14:23] Speaker 04:
It was raised in our reply.

[00:14:24] Speaker 04:
So by the time we got to our reply,

[00:14:27] Speaker 04:
The issue was fully in play.

[00:14:29] Speaker 04:
The door had been opened by the board.

[00:14:30] Speaker 04:
The board's rules say that a reply may address issues raised by the board in the petition or in the decision on institution, and the reply may address issues raised by the patent owner in the patent owner response.

[00:14:48] Speaker 04:
And we went through quite a bit of detail why

[00:14:52] Speaker 04:
All of those issues were fully addressed and that door was wide open by the time our reply came along.

[00:14:59] Speaker 04:
So the board did abuse its discretion by saying, it's a brand new issue, I'll reply.

[00:15:03] Speaker 03:
The board can refuse to, can refuse or allow new arguments in a reply brief.

[00:15:10] Speaker 03:
How long do you need to abuse this discretion if it's following its own rules, its own process?

[00:15:15] Speaker 04:
The board's rules say we are permitted.

[00:15:19] Speaker 03:
We are permitted to address issues where... It doesn't say the board is required.

[00:15:24] Speaker 04:
It says we are allowed.

[00:15:26] Speaker 03:
We are allowed.

[00:15:26] Speaker 03:
The board's... That's right.

[00:15:28] Speaker 03:
You're permitted, but it's the board that's got to give the permission.

[00:15:33] Speaker 03:
And it does in its rules.

[00:15:35] Speaker 03:
And the only exception is that... It has the authority to give the permission, but it's not required to give permission.

[00:15:45] Speaker 04:
The board's rules set forth the way the arguments are presented, and the rules clearly state that we are permitted, we are allowed to address issues raised by the board.

[00:15:58] Speaker 04:
and by the patent owner in the patent owner response.

[00:16:02] Speaker 04:
The only restriction is that you cannot raise an issue for the first time in a reply.

[00:16:09] Speaker 04:
So if the issue had not been raised previously and I was suddenly on reply to give it a new theory, reduced cost, there the board has discretion to say, we're not going to consider it.

[00:16:19] Speaker 04:
But the board doesn't have the discretion here to say an issue that they raised, that the patent owner raised, we don't have an opportunity to respond to?

[00:16:26] Speaker 04:
Of course we have an opportunity to respond to it.

[00:16:29] Speaker 04:
And Willis did.

[00:16:30] Speaker 04:
And Willis even addressed it in their survey apply.

[00:16:33] Speaker 04:
So the issue was clearly in play.

[00:16:35] Speaker 04:
And the board completely ignored the issue and said, we're not going to consider that issue because it's a new issue on reply.

[00:16:43] Speaker 01:
So that's where.

[00:16:44] Speaker 01:
Counsel, you're over your time.

[00:16:46] Speaker 01:
Oh, sorry.

[00:16:47] Speaker 01:
We're going to give you two minutes

[00:17:08] Speaker 00:
May it please the court, counsel.

[00:17:09] Speaker 00:
Again, my name is Patrick Barnes.

[00:17:11] Speaker 00:
I represent Willis Electric.

[00:17:12] Speaker 00:
The court should affirm the board's judgment in this case.

[00:17:15] Speaker 02:
So the problem I'm having is we've got a situation where Kamada has non-conductive material that is non-copper wire reinforcing by being wound on the outside of the wire.

[00:17:29] Speaker 02:
and here the patent does what DeBlazes shows, which is having the reinforcement inside the wire.

[00:17:38] Speaker 02:
Now, why isn't the situation here that we're dealing with a simple substitution, which in fact was argued in the petition.

[00:17:50] Speaker 02:
Reinforced inside is a simple substitution for reinforced outside.

[00:17:57] Speaker 00:
Well, I guess the way I'd answer your question, Judge Dyke, is first by pointing out with Kumada, there are copper wires that are twisted together.

[00:18:06] Speaker 00:
So that is consistent with the UL standards.

[00:18:09] Speaker 00:
That is one form of durability and strength that is taught in the art.

[00:18:15] Speaker 02:
So you're saying there is a cost saving by using the DeBlaze solution over Kumada's twisted wire?

[00:18:21] Speaker 00:
What I'm saying is, if I could step back,

[00:18:25] Speaker 00:
It is Everstar's burden to plead and prove its obvious mistake.

[00:18:29] Speaker 02:
Come on, you're not answering my question.

[00:18:31] Speaker 02:
So you're saying that Kumada is a twisted wire situation and if that's the case, then it seems as though there's a copper saving by going to a single strand.

[00:18:44] Speaker 00:
There is no record at the board that would support that conclusion.

[00:18:50] Speaker 02:
That is not an argument that... The way you just said that Kamada is a twisted wire situation.

[00:18:56] Speaker 00:
There is twisted wire.

[00:18:57] Speaker 00:
That's right.

[00:18:58] Speaker 02:
Why isn't there a cost saving?

[00:19:00] Speaker 00:
Well, again,

[00:19:04] Speaker 00:
There's no reason to combine Kumada with De Blatis because... That's not my question.

[00:19:11] Speaker 02:
There would be a cost saving if you substituted a single strand as in De Blatis for the twisted wire in Kumada, right?

[00:19:23] Speaker 00:
If you are taking copper out of Kumada and reinforcing it internally with a strand,

[00:19:31] Speaker 00:
While it's not in the record, I would assume that there would be a cost savings to that.

[00:19:37] Speaker 02:
So why isn't that a motivation?

[00:19:41] Speaker 00:
Well, again, when you look at the patent, there are multi-dimensional reasons for this invention.

[00:19:52] Speaker 00:
Strength is one of them, cost is one of them, bulkiness is one of them.

[00:19:56] Speaker 00:
And when you look at the petition, again, Everstar had the choice to decide how it wanted to plead and prove its petition.

[00:20:03] Speaker 00:
And it owned it, and I think it was conceded here, did not address cost as a motivation combined.

[00:20:10] Speaker 02:
The only motive.

[00:20:11] Speaker 00:
But the board did in the institution decision.

[00:20:15] Speaker 02:
And the rules seem to say that they can address that in the reply as a result.

[00:20:21] Speaker 00:
I disagree with that.

[00:20:22] Speaker 00:
And I would direct Your Honor.

[00:20:24] Speaker 00:
You disagree with what?

[00:20:25] Speaker 00:
Pardon me?

[00:20:26] Speaker 00:
Do the rules permit that?

[00:20:30] Speaker 00:
No.

[00:20:30] Speaker 00:
I guess I'm trying not to get ahead of Your Honor, and I'm sorry if I did.

[00:20:36] Speaker 00:
What I'm trying to address is that the law is clear in Intelligent Bio and in Henny Penny, that the board is well within its discretion to hold the petitioner to the

[00:20:48] Speaker 00:
invalidity theories that were set forth in the petition.

[00:20:52] Speaker 02:
And those were before the amendment to the rules, which says that they can address in the reply what's in the institution decision.

[00:21:00] Speaker 00:
But I would also disagree that the board address cost as a motivation to combine.

[00:21:07] Speaker 00:
Instead, in the institution decision, the board specifically

[00:21:18] Speaker 00:
embraced a simple substitution of known element for another to obtain the predictable and desirable result of a more durable wire.

[00:21:26] Speaker 00:
That's the motivation combined.

[00:21:28] Speaker 00:
There is a passing reference to cost, but that's not the motivation combined that was embraced in the institution decision.

[00:21:35] Speaker 00:
And, Your Honor, what I would say is this would wreak havoc.

[00:21:38] Speaker 03:
But a reduction in cost would be a motivation, wouldn't it, under most circumstances?

[00:21:44] Speaker 00:
I don't know how to answer that in the abstract.

[00:21:47] Speaker 00:
Again, Your Honor, this is a multi-dimensional issue here.

[00:21:54] Speaker 00:
In the abstract, more strength is good.

[00:21:56] Speaker 00:
In the abstract, lower cost is good.

[00:21:58] Speaker 00:
In the abstract, a smaller, less bulky wire would be good.

[00:22:08] Speaker 00:
You kind of rob Peter to pay Paul sometimes.

[00:22:10] Speaker 00:
Again, when you go back to what a skilled person in the art would know at the time of the invention, there were absolutely known elements for sufficient durability.

[00:22:21] Speaker 00:
The UL standards, which again, Everstar relied on over 70 times.

[00:22:25] Speaker 02:
Well, we're talking about cost saving.

[00:22:27] Speaker 02:
I mean, both De Blatis and Kumada talk about cost saving from reducing the amount of copper wire, right?

[00:22:35] Speaker 02:
It's right there in the prior art references.

[00:22:39] Speaker 00:
I don't see that in Kumada.

[00:22:40] Speaker 00:
I don't see Kumada talking about the cost saving of taking out copper.

[00:22:47] Speaker 00:
Kumada talks about an economical process, a kind of a manufacture of assembly.

[00:22:52] Speaker 02:
It says that the amount of wire utilized in the prior art is enormous, and wire costs are the most significant element of cost in the net life.

[00:23:03] Speaker 02:
was talking about the advantages, the cost advantages of reducing the amount of copper.

[00:23:11] Speaker 03:
Didn't the court also, I mean the board, and it seems to me I recall that there's a discussion that the cost of copper is going up at this time too.

[00:23:32] Speaker 00:
I don't have that at my fingertips, Your Honor.

[00:23:38] Speaker 00:
But again, what I'd come back to, Judge Raina, about when I was talking about kind of the relative nature of this industry, De Blatis is a really good example of that.

[00:23:48] Speaker 00:
Because De Blatis is talking about, and this is why there's substantial evidence that supports the board's finding that the inventions that Everstar failed to prove obviousness.

[00:24:02] Speaker 00:
De Blatis refutes the notion that there's sort of going to be an interest in increasing strength, even though in the abstract, people might say, well, increased strength is a good thing.

[00:24:16] Speaker 00:
But again, in the context, there are trade-offs and there are decisions that need to be made.

[00:24:20] Speaker 00:
And De Blatis is specifically talking about retaining the strength and is talking about conserving the strength.

[00:24:27] Speaker 00:
And so when the only motivation combined that's in the petition,

[00:24:31] Speaker 00:
is increased durability or increased strength, that's not dublatis.

[00:24:37] Speaker 00:
Even if dublatis is trying to find ways to incorporate other aspects that would make their preferred embodiment better.

[00:24:53] Speaker 00:
I've kind of bounced around a little bit.

[00:24:56] Speaker 00:
But I would submit the laws clear in Intelligent Bio and Henny Penny, that the board, again, was well within its discretion.

[00:25:02] Speaker 00:
And my concern that I think this court would need to consider if it were considering any sort of relief that Everstar is thinking about is what happens now if there is a stray reference in the institution decision, and what's the patent owner supposed to do?

[00:25:19] Speaker 00:
The patent owner is under very strict word limits, page limits,

[00:25:23] Speaker 00:
And you look at what happened here.

[00:25:27] Speaker 00:
Willis Electric responded in earnest to the petition as set forth with the motivation to combine and address the increased strength.

[00:25:35] Speaker 00:
There's about a one page that kind of referenced the institution decision's kind of passing comment.

[00:25:42] Speaker 00:
But if this court were to find that it is an abuse of discretion,

[00:25:47] Speaker 00:
that the board has to consider everything, any new theory that's raised somehow, however brief, however insignificant.

[00:25:57] Speaker 02:
Do you agree that if we find that the board, in declining to consider cost, that cost is in fact a motivation?

[00:26:10] Speaker 00:
Your honor, I'm not in a position to make that concession.

[00:26:13] Speaker 00:
We would hold ever star to its burden.

[00:26:17] Speaker 00:
And I think we'd have to address that issue kind of on the merits and on the record.

[00:26:25] Speaker 00:
The fact of the matter is, again, the very simple path forward here is an affirmance, because even if this was an easy argument, and I don't accept that, and I won't concede that, but even at March Madness season, if you've got a wide open layup, you've got to still put the basket in the hoop, and Everstar didn't do that.

[00:26:46] Speaker 00:
Everstar's petition is crystal clear.

[00:26:50] Speaker 00:
There's a crystal clear admission to the board.

[00:26:52] Speaker 00:
That reduced cost is not in the petition.

[00:26:55] Speaker 00:
And we have that same admission here today.

[00:26:57] Speaker 00:
And I think following the precedent in Henny Penny and Intelligent Bio is the right thing to do, and certainly not in abuse of discretion.

[00:27:07] Speaker 00:
So with that, I will rest unless the court has any additional questions.

[00:27:13] Speaker 01:
Thank you, counsel.

[00:27:14] Speaker 00:
Thank you.

[00:27:15] Speaker 01:
Mr. Babcock has two minutes.

[00:27:27] Speaker 04:
Thank you, Your Honors.

[00:27:28] Speaker 04:
Judge Dyke, I found at least one passage that I think answers your question.

[00:27:32] Speaker 04:
Thank you for giving me the opportunity to dig through the record.

[00:27:36] Speaker 04:
I'm looking at page 41 of our blue brief, which cites

[00:27:45] Speaker 04:
of Appendix 657.

[00:27:48] Speaker 04:
And there, we argue to the board that a PASIDA, first of all, a skill in the art, would have been motivated to reduce cost by incorporating the internally reinforced wire of the bladest 120 into the net light system of Kamata, which would reduce cost of the system and be compliant with UL standards.

[00:28:11] Speaker 02:
And that's such a combination would reduce the poem I offered you in the system and come up.

[00:28:18] Speaker 02:
OK.

[00:28:18] Speaker 04:
So we put that together.

[00:28:20] Speaker 04:
That argument was in play.

[00:28:25] Speaker 04:
We made the combination.

[00:28:27] Speaker 04:
We explained why.

[00:28:28] Speaker 04:
I'm not suggesting that.

[00:28:33] Speaker 04:
I think the question here really is not whether that's

[00:28:37] Speaker 04:
correct or not.

[00:28:38] Speaker 04:
I think it is correct.

[00:28:39] Speaker 04:
I think it's pretty basic and I think as the court here is kind of, it suggested that reducing cost, De Blavis says it, Kamata talks about it.

[00:28:49] Speaker 04:
The board came up with it.

[00:28:51] Speaker 04:
It's not complicated.

[00:28:53] Speaker 04:
The question that we're raising on appeal is should the board have at least considered it?

[00:29:01] Speaker 04:
And the board said, we're not even going to consider it.

[00:29:02] Speaker 04:
It's a new argument to apply.

[00:29:03] Speaker 04:
And Willis says, well, it was a passing comment in the DI.

[00:29:08] Speaker 04:
Well, here, I'm looking at page 25 of our blue brief.

[00:29:13] Speaker 04:
This is what they argued to the board, response to institution decision comment.

[00:29:21] Speaker 04:
But it says, the board, de Blatis 120,

[00:29:24] Speaker 04:
provides cables without being expensive to manufacture.

[00:29:27] Speaker 04:
Therefore, a Pasito would be motivated to combine Kamada with the Bladis due to cost."

[00:29:32] Speaker 04:
That's not a comment.

[00:29:34] Speaker 04:
That's a rationale for institution.

[00:29:37] Speaker 04:
That was putting the issue in play.

[00:29:40] Speaker 04:
The parties thereafter argued it, put in evidence on it.

[00:29:45] Speaker 04:
The board said, we're going to punt entirely.

[00:29:48] Speaker 04:
We're not going to consider it at all.

[00:29:49] Speaker 04:
That was an abusive expression.

[00:29:51] Speaker 01:
Thank you, Mr. Hapcroft.

[00:29:53] Speaker 01:
You've both shed light on the issues.

[00:29:56] Speaker 01:
Thank you, Your Honor.

[00:29:57] Speaker 01:
The case is submitted.