[00:00:00] Speaker 02:
OK, our next case for argument is 21-2125, in-rate APPS.

[00:00:05] Speaker 02:
Mr. Murphy, please proceed.

[00:00:07] Speaker 00:
Thank you, and may it please the court.

[00:00:09] Speaker 00:
There are two main issues with the board's decision.

[00:00:12] Speaker 00:
The first relates to the claims that recite full bottle capture.

[00:00:16] Speaker 00:
With respect to those claims, the board has not addressed the evidence and arguments of record that the combination would remove full bottle capture from the nears reference.

[00:00:27] Speaker 00:
With respect to the claims that recite offset handles,

[00:00:31] Speaker 00:
the board has taken prior ARC statements far out of context.

[00:00:36] Speaker 00:
In both instances, there is no motivation because the board's factual findings are not supported by substantial evidence.

[00:00:44] Speaker 00:
If I could jump right into the full bottle capture issue, and by full bottle capture we're referring to ribs that

[00:00:51] Speaker 00:
bottle caps when a crate is cross-stacked.

[00:00:54] Speaker 03:
And in your analysis, Jess, I don't want to cut you off, but if you could include a question I had about that, which is if you could explain to me why pushing a handle out would destroy a crate's ability to achieve full-bottled capture, which is the argument you make in blue, 2048, 49.

[00:01:11] Speaker 03:
If you could include that in what you're about to say, I'd appreciate it.

[00:01:16] Speaker 00:
Yes, so I can lead with answering your question.

[00:01:19] Speaker 00:
What happens is these bottle

[00:01:21] Speaker 00:
crates are all arranged on pallets.

[00:01:23] Speaker 00:
The pallets are stacked high, and they're... Hey, Council, put down the pad of paper.

[00:01:29] Speaker 00:
You're waving it in front of your face, so we really can't even fully see you.

[00:01:32] Speaker 00:
My apologies.

[00:01:34] Speaker 00:
That's okay.

[00:01:35] Speaker 00:
So these crates are arranged on pallets, and they're stacked such that one layer of bottle crates is arranged in one orientation, and then the next highest layer is arranged in another orientation.

[00:01:50] Speaker 00:
That's called cross-stacking.

[00:01:52] Speaker 00:
Cross stacking increases the stability of a stack of crates versus a situation where the crates are just stacked without cross stacking them.

[00:02:04] Speaker 00:
If you can achieve full bottle capture, you get even more stability.

[00:02:09] Speaker 00:
And that's what the inventors have done here.

[00:02:11] Speaker 00:
When you increase the width, to your honor's question, when you increase the width of a bottle crate, it throws off the orientation of those layers

[00:02:21] Speaker 00:
of stacks such that the bottle caps will hit in different spots on the bottom of the crates.

[00:02:28] Speaker 00:
And that's what Mr. Aps points out in his affidavit.

[00:02:32] Speaker 00:
And frankly, that's been admitted by appellants since the filing date of our application.

[00:02:38] Speaker 00:
Paragraph three of our application says when you change the width, you can't achieve full bottle capture.

[00:02:46] Speaker 00:
And so that is

[00:02:50] Speaker 00:
a marked improvement over the prior ARC.

[00:02:54] Speaker 00:
The board, in addressing our full bottle capture arguments, they conflate cross-stacking and full bottle capture.

[00:03:02] Speaker 00:
So the board says the evidence before us shows that the prior ARC can cross-stack.

[00:03:08] Speaker 00:
We agree the prior ARC can cross-stack, but we argued and submitted evidence that it cannot cross-stack while achieving full bottle capture when you have a third central row of bottles.

[00:03:21] Speaker 00:
in the stall reference that the board relies on.

[00:03:26] Speaker 03:
One sort of sub-point to this also is I think the other side says, I think I'm right, that none of the claims, at least claims 1, 15, and 25 actually require full bottle capture, right?

[00:03:42] Speaker 00:
So those claims, and if I could point you to our opening brief at page 24,

[00:03:50] Speaker 00:
All of the claims, I'll give you a moment.

[00:03:55] Speaker 00:
So there's a picture of the stall reference.

[00:03:59] Speaker 00:
And if you look at that reference, there are ribs at a lot of different locations on the bottom of that crate.

[00:04:05] Speaker 00:
But there are no ribs at the perimeter.

[00:04:08] Speaker 00:
That's because stall cannot put ribs at that location.

[00:04:12] Speaker 00:
That's supported by the ABS affidavit.

[00:04:13] Speaker 00:
If there were ribs in that location, it would be

[00:04:18] Speaker 00:
unstable, it wouldn't be able to cross stack.

[00:04:22] Speaker 00:
And all of the claims that we're arguing under the heading full bottle capture, they recite perimeter ribs.

[00:04:29] Speaker 00:
So those are the hard parts.

[00:04:31] Speaker 00:
That's the hardest part to achieve a full bottle capture.

[00:04:35] Speaker 00:
It's easy to put ribs where solid, just at these random locations on the interior of the base.

[00:04:44] Speaker 00:
it's difficult to place them at the perimeter because of what I said before.

[00:04:52] Speaker 00:
So the board and the director, I believe, they seem to kind of acknowledge that some change in dimension is shown in the prior art.

[00:05:03] Speaker 00:
You would have to change the dimensions of the crate when you add the third row because you have a centered handle.

[00:05:09] Speaker 00:
So what the board does is they make this passing reference to Kessler.

[00:05:12] Speaker 00:
They say, well, offset handles were null, period.

[00:05:17] Speaker 00:
And they don't explain how they're modifying years installed in view of Kessler in this regard.

[00:05:22] Speaker 00:
And Kessler says nothing about full bottle capture, says nothing about cross-stacking.

[00:05:30] Speaker 00:
And another point that the director makes is the director says,

[00:05:36] Speaker 00:
Well, you don't need to offset the handles.

[00:05:39] Speaker 00:
You could just leave them where they were.

[00:05:40] Speaker 00:
And then the crate would have the same dimension.

[00:05:43] Speaker 00:
And it could still cross-stack and achieve full bowel capture.

[00:05:47] Speaker 00:
That's not a position the board took.

[00:05:49] Speaker 00:
And there's no evidence that a crate that intentionally crowds the user's fingers, because if you don't move the handle, you're going to intentionally crowd the user's fingers, that that would be operable or a viable solution.

[00:06:08] Speaker 00:
The director also engages in some burden shifting.

[00:06:12] Speaker 00:
They say, well, appellants haven't pointed out how additional modifications wouldn't somehow save what the board has done.

[00:06:21] Speaker 00:
And that's not our burden.

[00:06:23] Speaker 00:
The board has the burden to point out the additional modifications.

[00:06:26] Speaker 00:
Any modifications the board is making, they have to point that out.

[00:06:31] Speaker 00:
If I could turn to the offset handles.

[00:06:34] Speaker 03:
Just on that last point, could you just give us the site to where the board said, in your view, or improperly shifted the burden, just so I'll have it for my records?

[00:06:49] Speaker 00:
I don't have that pin site.

[00:06:51] Speaker 00:
I can get it for you if I do have the rebuttal time.

[00:06:53] Speaker 03:
OK, thank you.

[00:06:54] Speaker 00:
Yeah.

[00:06:57] Speaker 00:
So on the offset handles issue.

[00:07:01] Speaker 00:
Kessler does not stand for the proposition that you would offset handles to make two handed carrying more convenient.

[00:07:10] Speaker 00:
Both the examiner and the board and the director think that Kessler teaches that it is a reason to offset handles, to make two handed carrying more convenient.

[00:07:21] Speaker 00:
Offsetting handles does not make two handed carrying more convenient.

[00:07:26] Speaker 00:
There are other tangential benefits to offsetting the handle, which appellants have acknowledged and conceived of through their invention, but offsetting the handles is not a reason that Kessler, excuse me, accommodating two-handed carrying is not a reason to offset handles.

[00:07:47] Speaker 00:
Kessler, it spends paragraphs and paragraphs explaining why it actually offsets its handles.

[00:07:55] Speaker 00:
it offsets the handles to accommodate one-handed carrying.

[00:07:59] Speaker 00:
Kessler is a paper case.

[00:08:01] Speaker 00:
The appellant's invention and the Mears and Sall references are all plastic crates.

[00:08:08] Speaker 03:
But Kessler just said, I mean, there's a site in Kessler, right, that explicitly, quote, it will be understood that the location of the two handholds allow the carton to be carried conveniently with both hands if desired.

[00:08:22] Speaker 00:
That's right.

[00:08:23] Speaker 00:
So that statement

[00:08:25] Speaker 00:
is only after you've decided to offset the handles.

[00:08:29] Speaker 00:
Tesla then says, well, if you're going to offset the handles, you should do it in the opposite direction.

[00:08:34] Speaker 01:
But the reason... That statement doesn't provide a motivation to have offset handles so you could carry it with both hands?

[00:08:43] Speaker 00:
I believe that statement, read in context, is saying,

[00:08:47] Speaker 00:
For balancing purposes, if you're going to offset the handles to accommodate one-handed carrying, to get more strength from the corner and to avoid leg contact, when you offset those handles, you want to do it in opposite directions as opposed to the same direction.

[00:09:01] Speaker 00:
If you offset them in the same direction, then you get an unbalanced crate.

[00:09:10] Speaker 00:
And there are cases on point that say,

[00:09:17] Speaker 00:
When the prior art is not concerned with the problems that the base reference is facing, there's no motivation to combine those things.

[00:09:30] Speaker 00:
And Mears, for example, is not concerned with one-handed carrying.

[00:09:35] Speaker 00:
If someone carried the Mears crate with one hand, all of the bottles would spill out.

[00:09:40] Speaker 00:
Mears is not concerned with its handle ripping.

[00:09:44] Speaker 00:
Mears is not concerned with contact with his leg when his case is held off to the side with one hand.

[00:09:49] Speaker 03:
What are the cases?

[00:09:50] Speaker 03:
I guess everything depends on the context, so I guess I'm not clear.

[00:09:53] Speaker 03:
I mean, there are a lot of words here about if the prior is not concerned with the same problem.

[00:10:00] Speaker 03:
So just to give me clarification, what cases are you talking about?

[00:10:05] Speaker 00:
So I'm talking about the Chembers case, and there's also the

[00:10:11] Speaker 00:
Knauf case.

[00:10:12] Speaker 00:
I don't know if it's a soft K or a hard K in Knauf.

[00:10:17] Speaker 00:
And also I think perhaps the most relevant case on point is Kotzeb.

[00:10:22] Speaker 00:
In that case, the board said, excuse me, this court said, the board was taking statements out of context.

[00:10:30] Speaker 00:
And the board improperly casts the invention at issue as a technologically simple one.

[00:10:36] Speaker 00:
In fact, the board, in their decision, leads off their decision saying the technology here is simple, in our case.

[00:10:44] Speaker 00:
And we think that the board is doing just what the board did in concept and taking statements that, in the abstract, appear to support the rejection.

[00:10:52] Speaker 00:
But in reality, in context, they don't.

[00:10:57] Speaker 00:
Council, you're into your rebuttal time.

[00:10:58] Speaker 00:
Would you like to save the remainder?

[00:11:01] Speaker 00:
Yes.

[00:11:03] Speaker 00:
Ms.

[00:11:03] Speaker 00:
Queller?

[00:11:06] Speaker 02:
The board's determination that the claimed beverage crates are obvious over the various combinations of Mears, Stahl, and Kessler is supported by substantial evidence, starting with where council left off with the offset handle limitations of claims 8, 18, and 25.

[00:11:26] Speaker 02:
would have been obvious as the board found to offset the handles of Mears's beverage crate because Kessler teaches a beverage crate with offset handles was known and as a convenient way for two-handed carrying.

[00:11:39] Speaker 02:
This is a standard case of obviousness where a known claim element, the handle location, is used according to its known function with predictable results and an articulated and art-supported reasoning, which is the convenience.

[00:11:55] Speaker 02:
There's been

[00:11:56] Speaker 02:
discussion of basically what I would call a competing interpretation of Kessler.

[00:12:01] Speaker 02:
However, even if opposing counsel's interpretation of Kessler is correct, that it's directed only to one-handed carrying this convenience statement, the board's reasoning is still supported by substantial evidence, which is Kessler's statements itself, which at appendix 538 and 539 specifically tie convenience to two-handed carrying.

[00:12:24] Speaker 02:
I'll address, unless your honors have any additional questions, the mention of the COTSAB case the council ended on.

[00:12:32] Speaker 02:
There is extremely different than the case and scenario here.

[00:12:37] Speaker 02:
In COTSAB, there was a prior art system and a claimed censor.

[00:12:43] Speaker 02:
And this court found that the board failed to equate why the system in the prior art

[00:12:49] Speaker 02:
equated to the sensor in the claim.

[00:12:51] Speaker 02:
There is no such confusion here.

[00:12:53] Speaker 02:
We have a handle for beverage crates in Kessler that equates directly to a handle for a beverage crate in Mears.

[00:13:00] Speaker 02:
You're just substituting one known element for another.

[00:13:05] Speaker 02:
Unless Your Honors have any other questions, I'll move on to the odd number of bottle capture areas.

[00:13:11] Speaker 02:
As with the previous rejection,

[00:13:15] Speaker 02:
Here, it's also obvious to adjust Meir's beverage crate from a two by four configuration to a three by five configuration, just a predictable variation of a crate size to accommodate a larger or different number of size bottles.

[00:13:30] Speaker 02:
Changing from even to odd was within the skill of the art, is nothing more than an obvious design choice.

[00:13:37] Speaker 02:
We have explained in depth why we believe in our briefing that claims one

[00:13:42] Speaker 02:
15 and 25 do not include that claim limitation.

[00:13:46] Speaker 02:
I'm happy to further elaborate.

[00:13:48] Speaker 03:
Well, his response to my question about that was to point to page 24 of the blue brief, which talks about the perimeter stuff.

[00:13:57] Speaker 03:
And that that's really what granularly we were talking about.

[00:14:00] Speaker 03:
And that he thought responsive to what I was asking.

[00:14:04] Speaker 03:
So why don't you respond to that as well?

[00:14:05] Speaker 02:
Certainly, Your Honor.

[00:14:06] Speaker 02:
So with respect to the perimeter, what the specification says

[00:14:11] Speaker 02:
is that it ties full bottle capture directly to the bottle capture areas being fully circumscribed by the ribs.

[00:14:21] Speaker 02:
And we point that out in our brief, but it's at appendix 49, paragraph 32, and also in their own brief at page 21, they relate full bottle capture to something where it's fully circumscribed.

[00:14:34] Speaker 02:
However, the claims, if you look at them,

[00:14:36] Speaker 02:
only require that the bottle capture areas are partially circumscribed.

[00:14:42] Speaker 02:
Therefore, the spec which ties full circumscribed to full bottle capture is not reflected in the claims.

[00:14:48] Speaker 02:
And that is why our position is that Claims 1 and 25 do not recite this claim limitation.

[00:14:55] Speaker 02:
I'd also like to point out that Claim 1, there's a lot of emphasis on cross-stacking.

[00:14:59] Speaker 02:
Claim 1 also does not require cross-stacking either.

[00:15:02] Speaker 02:
But Claim 16 does require full bottle capture.

[00:15:05] Speaker 02:
That is correct, Your Honor.

[00:15:07] Speaker 02:
And as the board found, I'll address the merits first.

[00:15:12] Speaker 02:
The board found that the modification, and the examiner found that the modification of just changing mirrors from 2 by 4 to 3 by 5

[00:15:20] Speaker 02:
had the full bottle capture.

[00:15:21] Speaker 02:
It still had these ribs fully subscribed around the bottle capture areas.

[00:15:26] Speaker 02:
And that it's appendix 408 and 492, where the examiner addresses it.

[00:15:32] Speaker 02:
And then the board says, essentially, Mears discloses everything but an odd number, and then points to the examiner's analysis.

[00:15:40] Speaker 02:
So Mears discloses full bottle capture.

[00:15:44] Speaker 02:
All the arguments on destroying full bottle capture are based on an additional modification that Mr. Apps asserts you would have to make.

[00:15:55] Speaker 02:
There is nothing to say that the mirrors... Moving the handles out.

[00:15:59] Speaker 02:
Correct, Your Honor.

[00:16:01] Speaker 01:
So as the board found... But you wouldn't have that problem if you did the offset handles.

[00:16:06] Speaker 02:
If you offset handles, or as the board stated at Appendix 8, you can move the handles someplace else, not offset.

[00:16:12] Speaker 02:
I don't know how many other locations there are other than

[00:16:14] Speaker 02:
offset or center, showing why that's sort of an obvious change.

[00:16:19] Speaker 02:
But the board said you could move it to other areas over different end columns, depending on your modification, but also that you can offset that.

[00:16:28] Speaker 02:
And that's consistent with the way an ordinary skill artisan is presumed to know and be able to make such modifications in the art.

[00:16:37] Speaker 02:
In addition, pointing out again,

[00:16:41] Speaker 02:
The fact that the only way to preserve full bottle capture with an odd number is to make this change is not persuasive because claim 1 and claim 16 don't require offset handles.

[00:16:55] Speaker 02:
So if you need offset handles in order to retain full bottle capture, claim 1 and claim 16 don't require you to have offset handles.

[00:17:07] Speaker 02:
Unless your honors have any other questions, we just ask you to affirm the board's decision on both sets of claims as supported by substantial evidence.

[00:17:14] Speaker 02:
Thank you, counsel.

[00:17:16] Speaker 02:
Mr. Murphy, you have some rebuttal time.

[00:17:19] Speaker 00:
Please proceed.

[00:17:20] Speaker 00:
All set.

[00:17:21] Speaker 00:
Thanks.

[00:17:22] Speaker 00:
To answer one of your honors' questions regarding where we are alleging that burden shifting is occurring, I would direct you to the government's brief at the top

[00:17:34] Speaker 00:
where they referenced additional modifications.

[00:17:39] Speaker 00:
They're alleging we didn't show that additional modifications couldn't somehow save the combination.

[00:17:49] Speaker 00:
I also want to just generally address, even though some of the claims don't recite certain features and some claims recite certain other features, the board still has to address the arguments

[00:18:04] Speaker 00:
that the modification, there's evidence in the record and no rebuttal evidence, that the modification would remove a feature from the mirrors referenced itself.

[00:18:17] Speaker 00:
And I'll point the board to the Merck case that's cited in the briefs.

[00:18:22] Speaker 00:
In that case, the board did not adequately grapple with the evidence and arguments in the record that showed there would be the removal of a feature.

[00:18:32] Speaker 00:
the argument, I believe, takes on even greater importance when it is claimed.

[00:18:37] Speaker 00:
But even with respect to claim one, the board still has to address what would happen to Mears.

[00:18:48] Speaker 00:
I don't have anything further unless your honors have any questions.

[00:18:52] Speaker 00:
OK.

[00:18:52] Speaker 00:
We thank both counsel.

[00:18:53] Speaker 00:
This case is taken under submission.