[00:00:00] Speaker 03:
uh... we have three argued cases this morning the first is number twenty-one fourteen seventy-three intuitive surgical operations versus porous health mister schroeder morning hours mary moved uh...

[00:00:21] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:23] Speaker 00:
The Board's decision, holding unpatentable all claims of intuitive 601 patent, cannot be affirmed for two primary reasons.

[00:00:32] Speaker 00:
First, although it's undisputed that intuitive 601 patent was the first to provide navigational steering guidance,

[00:00:39] Speaker 00:
to address the problem of operator disorientation during an endoscopic procedure, and that nothing in the prior art taught this.

[00:00:46] Speaker 00:
The board nonetheless held it was reasonable to infer that as a matter of ordinary creativity, this element would have been reasonable to infer.

[00:00:54] Speaker 00:
The board's decision runs contrary to this court's precedent in Arendi versus Apple, and the navigational steering guidance claimed in the 601 patent goes to the heart of the invention, is the advance over the prior art, and is in a complex technological area.

[00:01:08] Speaker 00:
And second, although Intuitiv presented unrebutted evidence of secondary considerations from a co-inventor of the 601 patent and a developer of Intuitiv's ION system, the board relied on its own conjecture that ION's navigation guidance is outside the claims of the 601 patent because other features of the ION contributed to its unexpected results and satisfied a long felt but unmet need.

[00:01:33] Speaker 00:
I'd like to address these two issues in turn.

[00:01:35] Speaker 00:
First, on the Arendy issue,

[00:01:38] Speaker 00:
This court in Arendi held that the board miss...

[00:01:50] Speaker 00:
of operator disorientation.

[00:01:53] Speaker 00:
So the prior art, Gnatra, it simply shows sequencing guidance during the context of registration.

[00:02:00] Speaker 00:
Now, registration during an endoscopic procedure occurs before the system knows anything about how to correlate the human body in real world to the models of the human that were generated from CT scans.

[00:02:12] Speaker 04:
So just to be clear, are you talking about the motivation to combine these two or are you absolutely talking about a missing element that wasn't in either piece of prior art that the boy came up with on its own?

[00:02:25] Speaker 00:
That's a great question.

[00:02:26] Speaker 00:
I'm absolutely talking about a missing element and not a motivation to combine.

[00:02:30] Speaker 00:
And so if you look at the guidance provided during the actual procedure, so there's two separate concepts.

[00:02:36] Speaker 00:
There's registration, where the coordinate space of the human body is related to or correlated to the model space.

[00:02:43] Speaker 00:
That's one distinct concept.

[00:02:45] Speaker 00:
This invention and this feature is directed towards guidance during the actual operation, during navigation.

[00:02:50] Speaker 00:
Once those coordinate systems have been correlated, how do you provide steering guidance to an operator in case they get disoriented so they know how to traverse?

[00:02:59] Speaker 00:
And if you look at the prior art in Gonatra, all that it provides is a tracking dock.

[00:03:03] Speaker 03:
Like arrows instead of dots, right?

[00:03:05] Speaker 00:
It's not simple.

[00:03:07] Speaker 00:
It's not that simple your honor it during In ganatra, it simply shows a dot which will show where in that space you are located But it does not provide steering guidance because a dot on it.

[00:03:19] Speaker 03:
What's the difference?

[00:03:20] Speaker 03:
I mean, what is it besides putting arrows?

[00:03:25] Speaker 00:
So it's more complicated than that because you have to not only track your current location and

[00:03:30] Speaker 00:
and orientation, but relate that to the model which was drawn to the path along the model that was pre-planned.

[00:03:37] Speaker 04:
And that's the other reference, SOPR, right?

[00:03:41] Speaker 00:
No, Your Honor.

[00:03:41] Speaker 00:
So the board expressly found SOPR's static pre-planned line did not provide the guidance that was claimed in the patent here.

[00:03:49] Speaker 00:
And that's because it was a pre-planned path that does not provide any orientation.

[00:03:53] Speaker 00:
And I know analogies are somewhat dangerous at times, but if you will, if you've ever had your phone, for instance, and you walk outside in an unfamiliar city, like happens to me every time I go to New York, and I can see a dot on a map, and I can see that the deli I want to is a couple blocks away, but I don't know what street I'm on, what direction I'm facing, and so what happens is you walk one direction, you see your dot move, and it's going the other way because you didn't realize your orientation.

[00:04:19] Speaker 00:
The claim guidance here provides steering guidance to the operator to tell them exactly how to traverse to get to the target location.

[00:04:27] Speaker 00:
So it is not simply a series of directions, it tells you how to steer to get there.

[00:04:32] Speaker 00:
And that is what the advance over the priority was.

[00:04:34] Speaker 00:
Because if you look at, if the operator gets disoriented, which is what is described in the background of the 601 patent, and as our inventor put in his declaration,

[00:04:45] Speaker 00:
The way that navigation had historically occurred was that a physician would study the patient's CT scans, would undergo years of extensive training so that they could understand just by looking at the picture from the camera, where they were within the lungs.

[00:04:59] Speaker 03:
What's the missing element here?

[00:05:01] Speaker 03:
In gonotra, as part of the registration process, you have the arrows.

[00:05:07] Speaker ?:
Yes.

[00:05:07] Speaker 03:
So you're saying the element's not present because the arrows were used for a different purpose?

[00:05:16] Speaker 00:
That's correct, Your Honor.

[00:05:17] Speaker 00:
So in gonadra, those arrows were providing the sequence.

[00:05:19] Speaker 00:
So the way gonadra works is that the physician would operate the endoscope to a specific location, usually an easily identifiable location in the lung, say the first part where it branches off.

[00:05:31] Speaker 00:
and the physician would say, I know exactly where I am.

[00:05:33] Speaker 00:
System, I am right here in the patient, mark that spot on the model.

[00:05:37] Speaker 00:
And then based on the pre-planned sequence that the physician came up with, the system would then say, hey, operator, you're supposed to go left first, and then you're supposed to come back.

[00:05:46] Speaker 00:
Then you're supposed to go right next, and you're supposed to come back.

[00:05:49] Speaker 00:
And then you're supposed to retract a little bit and then advance forward.

[00:05:52] Speaker 00:
And by doing that,

[00:05:53] Speaker 00:
then they could correlate the two models.

[00:05:55] Speaker 00:
But the system after that point, that was simply so the system knew where in the model the endoscope was.

[00:06:02] Speaker 00:
And it was only to provide that tracking dot.

[00:06:05] Speaker 00:
Nowhere did the prior art disclose providing a tracking dot and giving steering directions to the operator of an endoscopic system.

[00:06:14] Speaker 00:
And that is what is missing from the prior art.

[00:06:16] Speaker 00:
When you look at the navigation system... Well, that would be anticipation.

[00:06:21] Speaker 00:
That's correct.

[00:06:22] Speaker 00:
And the board had found in Gannatra that Gannatra did not anticipate.

[00:06:26] Speaker 00:
And the board had found that neither Gannatra nor Sober alone rendered this obvious.

[00:06:31] Speaker 00:
And so this was something that was indisputably nowhere within the prior arc.

[00:06:36] Speaker 04:
Well, I mean, I guess I think the board, talking about at least the claim element 1E,

[00:06:44] Speaker 04:
goes through quite a detailed analysis, citing expert testimony about how all of these limitations, I'm confused by the briefing here about the difference between elements and limitations, but maybe that's for another day.

[00:06:58] Speaker 04:
But it seems to me, I mean the board

[00:07:00] Speaker 04:
heard what you were saying and responded in quite a bit of detail in terms of the pieces of prior art and how combined they taught this element.

[00:07:11] Speaker 04:
So whereas on a de novo review, I don't know, maybe what you say might have some heft.

[00:07:17] Speaker 04:
But we're talking about substantial evidence review of the board's reading of this prior art.

[00:07:23] Speaker 04:
So I think it's a tough sell, frankly.

[00:07:27] Speaker 00:
I understand, Your Honor.

[00:07:29] Speaker 00:
Arendt talked about, in context of a de novo review, the decision, this court's decision in Arendt said the board misapplied the law, this court's law, on obviousness, when it used nothing more than common sense to supply an element that's missing.

[00:07:43] Speaker 04:
And that's why... Yeah, but there were a lot of... I mean, that is a broad proposition.

[00:07:47] Speaker 04:
I'm not suggesting you're misstating anything, but there's a lot more to Arendt.

[00:07:51] Speaker 04:
One, including, wasn't Arendt just one piece of prior art?

[00:07:54] Speaker 04:
There was no combination in Arendt.

[00:07:56] Speaker 04:
And what the court said is, OK, we've got this problem with what the board did here, but there are ways they didn't suggest that common sense and ordinary creativity could not be used.

[00:08:10] Speaker 04:
And one of the things they said, at least, is if you give a reasoned explanation.

[00:08:15] Speaker 04:
So I don't see what's missing in the board's analysis here.

[00:08:19] Speaker 04:
They didn't just use the words and say, we don't have to go any further.

[00:08:22] Speaker 04:
It's quite a detailed analysis of what their thinking was, right?

[00:08:26] Speaker 00:
Your honor, the board does send significant analysis on the motivation to combine section and the hindsight section, but the part that's dealing with the missing element, that's the part that I'm focused on.

[00:08:36] Speaker 00:
And that part, this is after they've already concluded that Ganatra does not anticipate.

[00:08:41] Speaker 00:
And after footnote five on appendix 37 concluded that Ganatra not only doesn't anticipate, but doesn't teach this either.

[00:08:49] Speaker 00:
And then they also conclude that SOPR by itself does not teach this.

[00:08:52] Speaker 00:
And if you were to simply combine the two, Ganatra's registration process where it did use arrows.

[00:08:58] Speaker 04:
and that's the way they talk about common sense and creativity i'm looking at that i think you are to the missing element section on appendix thirty eight forty and your concern is that the bumped up against a rendy because of their overuse of their misuse of common-sense principle so show me what

[00:09:21] Speaker 04:
they said that you're troubled by.

[00:09:24] Speaker 00:
Yes, Your Honor.

[00:09:24] Speaker 00:
So the part that I'm focused on is this paragraph at the bottom of 42.

[00:09:29] Speaker 00:
And the language right above that, right, is where the board quotes KSR and has this reference to ordinary creativity.

[00:09:35] Speaker 00:
But then it's where they just say it's reasonable to infer from the teachings of ganatra that arrows used for guiding the endoscope from one registration target to the next along a pre-planned path could similarly guide the endoscope to a target of interest

[00:09:49] Speaker 00:
all the way around a pre-planned route as taught by Soper.

[00:09:52] Speaker 00:
So that final sentence on 42, that's the part that's entirely missing from the prior art.

[00:09:56] Speaker 00:
Nothing teaches that.

[00:09:57] Speaker 00:
The prior art simply talks about, I mean, it was difficult enough, as was explained in Ganatra and Soper, simply to accurately place a tracking dot on a patient model.

[00:10:07] Speaker 00:
let alone provide guidance to an operator as to how to steer along, based on where that is in 3D space, correlating the human body to a model, and then to steer that, and to tell the operator steer left, steer right, up, down, forward or back.

[00:10:22] Speaker 00:
That is the part that was missing from the prior art.

[00:10:25] Speaker 04:
Your time's running out, so I know you wanted to mention the secondary consideration.

[00:10:29] Speaker 04:
So in that regard, let me just ask you.

[00:10:31] Speaker 04:
It seemed to me, if I'm calling the right case, that the board relied predominantly on the fact that what you were claiming was new and different, and yadda da, was 3D and stuff that wasn't really part of the claim here, the claims at issue here.

[00:10:48] Speaker 04:
What's your response?

[00:10:49] Speaker 00:
Yes, Your Honor.

[00:10:50] Speaker 00:
So in Graham v. John Deere, the Supreme Court has urged the courts to pay attention to objective indicia but non-obviousness because they guard against hindsight bias.

[00:10:59] Speaker 00:
And to your specific question, when the board looked at the product, the intuitive ion system, and there was unrebutted testimony as to how that operated, Dr. Duendem provided the testimony.

[00:11:10] Speaker 03:
No errors, right?

[00:11:11] Speaker 00:
Pardon me?

[00:11:11] Speaker 00:
No errors.

[00:11:13] Speaker 00:
for the intuitive system.

[00:11:16] Speaker 00:
So the board's construction, Your Honor, for guidance requires graphical... The commercial product.

[00:11:23] Speaker 03:
Which you relied on for secondary considerations.

[00:11:27] Speaker 03:
There's no arrows, right?

[00:11:30] Speaker 00:
That's correct, Your Honor.

[00:11:31] Speaker 00:
The board's construction of guidance was graphical indicators such as vectors or arrows

[00:11:37] Speaker 00:
that point in the direction the endoscope is to travel.

[00:11:40] Speaker 00:
So it doesn't require arrows.

[00:11:42] Speaker 00:
These are examples of graphical indicators that point in the direction the endoscope is to travel.

[00:11:48] Speaker 00:
And his testimony unrobotted is that the line that's superimposed on the virtual rendering of the endoscope view, it's a 3D line that's continuously updated based on position and orientation, that that provides a directionality.

[00:12:02] Speaker 00:
because the operator can look through that screen, see where they are with respect to that continuously updated line, and steer along that path to get to the target.

[00:12:13] Speaker 00:
The problem that the 601 patent sought to solve is what happens when an operator gets disoriented and they're within the lung or the body.

[00:12:21] Speaker 00:
They can't see, they lose where they're at.

[00:12:23] Speaker 00:
They know that they need to get to some deep spot, but they are turned around, maybe they're looped around.

[00:12:28] Speaker 00:
This is also in the background of the patent.

[00:12:30] Speaker 00:
How do they know where to go?

[00:12:31] Speaker 02:
Well, in that situation, why couldn't they just rely on the arrows of gonadra in order to become oriented?

[00:12:39] Speaker 00:
That's a great question.

[00:12:40] Speaker 00:
And it's because the arrows in gonadra do not know where the location of the endoscopy is.

[00:12:45] Speaker 00:
Those arrows of gonadra are simply sequencing guidance prepared in advance to say, if you know, if you operate... They're prepared in the registration process, but that doesn't mean they can't be later used.

[00:12:57] Speaker 00:
Nothing in ganatra explains determining the system telling guiding the operator All that the entire premise of ganatra is based grounded upon the operator knowing where they are the operator says system I'm here.

[00:13:12] Speaker 00:
Can you remind me of the sequence?

[00:13:13] Speaker 00:
I need to traverse The problem the 601 patent sought to solve is what happens when the operator does get turned around

[00:13:21] Speaker 00:
and what happens when they do not know where they're at, and they need the system then to guide, to provide that guidance.

[00:13:28] Speaker 00:
And that's what Ganatra does not do.

[00:13:30] Speaker 00:
It simply provides the dot, and that's what SOPR does not do.

[00:13:33] Speaker 00:
And I see that I'm in my rebuttal time, Your Honors.

[00:13:38] Speaker 00:
Okay, you just want to save it?

[00:13:39] Speaker 03:
Yes, thank you.

[00:13:40] Speaker 03:
Okay, thank you.

[00:13:41] Speaker 03:
This is Fukuda.

[00:13:52] Speaker 01:
Good morning, Judge Dyke, Judge Prost, Judge Reyna, Chin-Li Fukuda from Sidney Austin on behalf of Horace.

[00:13:59] Speaker 01:
I'd like to address first the appellant's arguments regarding Arendi.

[00:14:06] Speaker 01:
And as your honors have heard, there is no missing element.

[00:14:10] Speaker 01:
This is not a missing element analysis.

[00:14:12] Speaker 01:
And in fact, in this court's precedent that was just issued yesterday for which we submitted a 28-J letter

[00:14:20] Speaker 01:
In the Fleming versus Sears Design Court case, this court made clear that you can have a combination of references, two references, that together disclose limitations.

[00:14:33] Speaker 01:
And that is exactly what the board relied on here for its decision.

[00:14:36] Speaker 01:
The board relied on the combination of Ganatra and Soper to show that this guidance limitation was rendered obvious by the prior arch.

[00:14:46] Speaker 01:
And the board goes through

[00:14:48] Speaker 01:
more than substantial evidence and analysis and reason explanation to show what Gnatra shows, which is that arrows are used to steer an endoscope through the lung during the registration process.

[00:15:02] Speaker 01:
Gnatra also says there's a subsequent navigation step.

[00:15:05] Speaker 02:
What about the argument that you can't do that?

[00:15:07] Speaker 02:
You can't use Gnatra's arrows for guidance because they're informed during the registration process.

[00:15:14] Speaker 01:
And the board considered this, Your Honor.

[00:15:17] Speaker 01:
Ganatra actually said, after the registration step, when you get to navigation, in which you're using the same step, Ganatra says other types of visual indicators can be used to get to the target location.

[00:15:33] Speaker 01:
And for that other type of visual indications, you would look to a reference like SOPR, which is analogous art.

[00:15:39] Speaker 01:
It's trying to also steer an endoscope.

[00:15:42] Speaker 01:
And SOPR is

[00:15:45] Speaker 01:
the reference that shows that line, right, that shows the entire path from where the endoscope is all the way to where the target site is.

[00:15:53] Speaker 01:
So when you combine these two things together, you have all of the limitations at issue here.

[00:15:59] Speaker 01:
You have steering, you have arrows, you have an entire path that goes all the way to the target site.

[00:16:07] Speaker 01:
And this is the board's analysis.

[00:16:09] Speaker 01:
This analysis was conducted over

[00:16:12] Speaker 01:
about 12, 13 pages of analysis supported with detailed citations to expert declarations, Dr. Hannaford's declaration with multiple paragraphs directed to this analysis, and also citations to Dr. Cleary's analysis.

[00:16:27] Speaker 01:
And Dr. Cleary is intuitive's expert.

[00:16:30] Speaker 01:
So there are points where both experts agreed that the arrows disclosed in Gnatra are helpful in pointing the user and the endoscope in the direction it ought to go.

[00:16:41] Speaker 01:
So it is a very small step from that point to then say that in order to guide this endoscope all the way to the target site, you can use arrows as well as a visual indicator to guide you.

[00:16:56] Speaker 01:
And your honor, so this is not a missing limitation situation.

[00:17:00] Speaker 01:
What the board did is in full compliance with the Arendi precedent.

[00:17:05] Speaker 04:
Just taking you down a little to the weeds, there's some

[00:17:09] Speaker 04:
back and forth in the briefing about this use of the word limitation and elements and you take issue I believe in red with arguing that the other side's parsing of this claim versus this limitation versus element thing doesn't make sense.

[00:17:25] Speaker 04:
Can you just talk to us a little about that distinction if it exists between elements and limitations that we're talking about in this case?

[00:17:33] Speaker 01:
Yes, Your Honor.

[00:17:35] Speaker 01:
This is not a dispositive issue, because given the court's precedent in Fleming and Classical and so forth, in either situation, what the board found does not fall within Arendi.

[00:17:46] Speaker 01:
However, there is case law.

[00:17:49] Speaker 01:
I believe Corning Glass is one of them, points out the fact that you could have an element that comprises multiple limitations.

[00:18:00] Speaker 01:
I believe what appellants try to do is to group all of those limitations together and say, you have to find basically that there is a single piece of prior art that discloses all of these limitations in the guidance element.

[00:18:14] Speaker 01:
In other words, okay, so there's an element and then the limitations within that element.

[00:18:18] Speaker 01:
Correct, Your Honor.

[00:18:19] Speaker 01:
And what Fleming and Clasco and other presidents of this court had said was, you don't need to break it up that finely.

[00:18:25] Speaker 01:
You can find that two pieces of art combined with the right motivation

[00:18:30] Speaker 01:
can disclose all of the limitations of that element.

[00:18:33] Speaker 01:
So this is not a missing element situation.

[00:18:35] Speaker 01:
This is your classic KSR situation where you can use common sense and even ordinary creativity of a person of ordinary skill in the art to show that this limitation is found in the combination of prior art with motivation.

[00:18:54] Speaker 01:
And just to address,

[00:18:57] Speaker 01:
You know, even under a Palin's argument that even if there is a missing element issue here, what the board did was a detailed analysis.

[00:19:06] Speaker 01:
It's accompanied by a reasoned explanation.

[00:19:09] Speaker 01:
And the only thing that Arendi asks this court to do is to do a searching review to identify whether the board had done that reasoned analysis.

[00:19:17] Speaker 01:
And the answer is yes, given all of the analysis that's been in front of the board and cited to.

[00:19:25] Speaker 01:
So Your Honor, would you like me to address the secondary consideration point?

[00:19:31] Speaker 03:
You can do that for a moment.

[00:19:33] Speaker 01:
OK.

[00:19:35] Speaker 01:
What's important on the secondary consideration point is that the evidence that's put forward by Dr. Duendem's declaration legally is deficient in terms of making a showing of nexus.

[00:19:48] Speaker 04:
There's a little confusion on how the board handled this, right, because we've got this

[00:19:53] Speaker 04:
two-step thing about a presumption of nexus.

[00:19:56] Speaker 04:
And we have a lot more cases that deal with this presumption question, I think, than the actual direct nexus.

[00:20:01] Speaker 04:
This wasn't a presumption question, right?

[00:20:05] Speaker 04:
The board didn't rely on a presumption of nexus.

[00:20:08] Speaker 04:
It went to direct nexus.

[00:20:10] Speaker 04:
But they do use some of the discussions that is in our case law for presumption.

[00:20:15] Speaker 04:
All of this co-extensiveness, my recollection is, that all deals with when you're establishing whether there's a presumption.

[00:20:22] Speaker 04:
And so I thought it was a little confusing here because we weren't talking about a presumption, but there was still reference to coextensiveness and that sort of thing.

[00:20:31] Speaker 04:
Am I right?

[00:20:32] Speaker 01:
That is correct.

[00:20:33] Speaker 01:
That is correct, Your Honor.

[00:20:34] Speaker 01:
The board did conclude that the presumption of nexus does not apply here because there is no coextensiveness with the claims.

[00:20:42] Speaker 01:
However, the board then moved on and did further analysis.

[00:20:44] Speaker 01:
The board then looked at whether there was actual showing by the patent holder

[00:20:51] Speaker 01:
that nexus was proven that directly connected the evidence, the secondary consideration evidence to the novel elements or novel features of the claim.

[00:21:02] Speaker 01:
So then the board went on to do that exact analysis.

[00:21:05] Speaker 01:
That is that issue here.

[00:21:06] Speaker 01:
And here is where Dr. Duendem's declaration fails because what Dr. Duendem's declaration says is he compares two embodiments, both of which are covered by these claims.

[00:21:18] Speaker 01:
He said continuous guidance.

[00:21:19] Speaker 01:
is better than intermittent guidance.

[00:21:22] Speaker 01:
Now, the board already found that both of those embodiments are encompassed within the claims.

[00:21:26] Speaker 01:
And under this court's precedent under Therasense, in Rakow, that the court has made it clear that when you make a showing that some embodiments show the benefit of the invention, but other embodiments do not, that fails to show nexus as a matter of law.

[00:21:45] Speaker 01:
Because that particular showing demonstrates

[00:21:49] Speaker 01:
that your evidence is not commensurate with the scope of the invention.

[00:21:54] Speaker 04:
Did you have your own expert here, or did you just provide legal argument as to why their arguments on Nexus failed?

[00:22:02] Speaker 01:
Your Honor, because their argument is legally deficient, we rebutted that based on the law.

[00:22:09] Speaker 01:
And the law is clear that you, in fact,

[00:22:18] Speaker 01:
Therosense makes clear that if the problem that's being solved as they claim by the embodiment is not really a requirement of the claims.

[00:22:34] Speaker 01:
So in Therosense, there was a short-filled problem that was being solved supposedly by the embodiment.

[00:22:39] Speaker 01:
However, the court found that in Therosense, the claims were broad enough to cover

[00:22:46] Speaker 01:
short-filled being solved as a problem and short-filled not being solved by an embodiment and therefore by identifying the short-filled solution that is not commensurate with the scope of the claim and therefore it is legally deficient and that's exactly what intuitive has done in this case.

[00:23:04] Speaker 01:
All they've done is to point out that there may be one embodiment covered by the claim that's superior to another embodiment covered by the claim.

[00:23:11] Speaker 01:
There's no adequate showing that all of the

[00:23:14] Speaker 01:
that there's adequate evidence that all of the evidence would in fact lead to the benefit of the climate invention and that's what's required, Your Honors.

[00:23:27] Speaker 03:
Any further?

[00:23:28] Speaker 01:
No, I'm happy to see the rest of my time.

[00:23:34] Speaker 03:
Thank you.

[00:23:35] Speaker 03:
Mr. Schroeder.

[00:23:45] Speaker 00:
I think, Your Honors, this was not a presumption case.

[00:23:49] Speaker 00:
This was an evidence on secondary considerations of direct.

[00:23:52] Speaker 00:
We relied on the direct connection.

[00:23:53] Speaker 00:
And we had unrebutted testimony from the inventor explaining how the ion falls within the scope of the claims.

[00:24:00] Speaker 00:
And under NRACAL, that's sufficient.

[00:24:02] Speaker 00:
It's clear you do not have to market and sell a product that satisfies every single embodiment.

[00:24:08] Speaker 00:
And in the face of that, Orris came forward with no other evidence.

[00:24:12] Speaker 00:
It's simply attorney argument to respond to that.

[00:24:16] Speaker 00:
And so this directionality feature, and there was a reference to the statement about whether or not the entire success was attributed to continuous.

[00:24:26] Speaker 00:
That statement is taken out of context.

[00:24:28] Speaker 00:
What he's talking about is how the 3D line, because it is continuously updated in the ION system based on the position and the orientation, how that line can provide directionality when a static line such as the one in SOPR cannot, because it is static and fixed.

[00:24:46] Speaker 00:
And so if there's no further questions, Your Honor, I'll briefly conclude.

[00:24:50] Speaker 00:
Both Arendi, this court's holding in Arendi, and secondary considerations both serve to guard against hindsight bias when conducting an obviousness analysis.

[00:24:59] Speaker 00:
Even when Ganatra and SOPA are combined, there is still no reference of those two that provide steering guidance to a target location in a patient anatomy.

[00:25:08] Speaker 00:
And here the following are undisputed.

[00:25:09] Speaker 00:
601 patents sought to solve this problem of operative disorientation

[00:25:14] Speaker 00:
and that the navigation guidance at issue here claimed was added during prosecution to distinguish over the prior art, and the examiner then held it distinctive.

[00:25:23] Speaker 00:
And we've got the underbutted testimony from Dr. Gwindham.

[00:25:26] Speaker 00:
And yet the board concluded that the invention described and claimed by intuitive more than a decade ago would simply be a matter of common sense and reasonable to infer, and that it should never have issued.

[00:25:36] Speaker 03:
Thank you.

[00:25:36] Speaker 03:
Thank you, Mr. Schroeder.

[00:25:37] Speaker 03:
Thank you, Mr. Potter.

[00:25:40] Speaker 00:
The case is submitted.