[00:00:00] Speaker 01: Our first case, your argument is P-TECH, LLC versus Intuitive Surgical, 2022, 1102. [00:00:10] Speaker 01: Mr. Evans. [00:00:12] Speaker 01: Thank you, Your Honor. [00:00:16] Speaker 03: May it please the Court. [00:00:18] Speaker 03: This case started with two IPR petitions that introduced the two primary references, the Tierney-Madhani reference and the Hoeven reference. [00:00:28] Speaker 03: pages 25 to 29 of our primary principal brief, we quoted numerous, when I say numerous, I'm talking I think 12, 15 quotes from the one petition and 10 or 11 from the other that lauded the ability to articulate, rotate, [00:00:46] Speaker 03: and get forced feedback from an end effector. [00:00:49] Speaker 04: Okay, but risk of articulation is not a claim requirement here, right? [00:00:55] Speaker 04: Articulation is not expressed in the claim that is correct. [00:00:58] Speaker 04: So why does there have to be a combination that shows a feature that's not required by the clients? [00:01:07] Speaker 03: The reason, Your Honor, is that in the two pieces of art that they're trying to combine, if you don't have articulation, it's not safe. [00:01:15] Speaker 03: And you can't line up a linear stapler. [00:01:18] Speaker 03: So they have a linear stapler that's going to fire 20, 30 staples. [00:01:22] Speaker 03: It's stuck without articulation to a rigid shaft. [00:01:26] Speaker 03: The rigid shaft can't rotate. [00:01:27] Speaker 04: What's the evidence that it's not safe? [00:01:30] Speaker 03: The evidence that it's not safe, we submitted an FDA letter that showed that when you misfire a staple, bad things happen. [00:01:38] Speaker 03: They had thousands of deaths. [00:01:40] Speaker 03: Well, that's not addressing wrist articulation. [00:01:44] Speaker 03: It's addressing what happens when a staple misfires or isn't aligned properly with the tissue inside the patient. [00:01:51] Speaker 03: And then you close the patient up and you can't see the internal bleeding. [00:01:54] Speaker 03: So when you don't get these staples in in the right spot, you have a serious problem. [00:01:59] Speaker 03: In tyranny, which showed a clip applier, just in applying a single clip, it both rotated and articulated just to put in one single clip. [00:02:10] Speaker 03: And now they're talking about getting rid of rotation, getting rid of articulation, putting in a linear element that has to go and close a large amount of tissue, cut the tissue, and put in staples. [00:02:21] Speaker 03: And they say that you can do that just because they found the elements, so stick them together. [00:02:27] Speaker 03: And during the oral argument, they said, if you cut it off with a hacksaw, you could stick our Tierney robot onto any manually operated device. [00:02:37] Speaker 00: us look into articulation in the references. [00:02:39] Speaker 00: What's your best case for that proposition? [00:02:40] Speaker 03: Best case for that, I think we have two of them, Your Honor. [00:02:43] Speaker 03: The first one is Cook Group versus Boston Scientific. [00:02:47] Speaker 03: And the second one is Intuitive Surgical versus Ethicon. [00:02:52] Speaker 04: In the non-preco cases, right? [00:02:54] Speaker 04: I'm sorry, Your Honor. [00:02:55] Speaker 04: Their non-precedential opinion. [00:02:58] Speaker 03: But I think they recite good law. [00:03:01] Speaker 04: And if they're not precedential today... Well, a precedential decision that governs this area is Vansky, right? [00:03:08] Speaker 04: I'm not familiar with that case, Your Honor. [00:03:12] Speaker 04: Okay. [00:03:12] Speaker 04: What Vansky says is that you're concerned if the combination would be inoperative or have undesirable qualities. [00:03:21] Speaker 04: But the fact that a combination is missing a desirable property that's not a claim limitation would seem not to be relevant to the motivation to come on. [00:03:32] Speaker 03: But in the two petitions, Your Honor, they held out that the reason you would combine these references was because of articulation, rotation, and force feedback. [00:03:40] Speaker 03: They said that. [00:03:41] Speaker 03: They put that issue in play in their petitions. [00:03:44] Speaker 03: And they said that because Madhani was so big on force feedback, [00:03:50] Speaker 03: and so big on articulation and rotation and the precise use of these cables, that that's how you would precisely control their stapler. [00:03:57] Speaker 03: And then as the IPR progressed and they realized the forces are too great to combine these two references, they slowly backed up and backed up and backed up so that the IPR hearing council for intuitive said, you don't need rotation, you don't need articulation. [00:04:12] Speaker 03: Even though they had really pushed them hard, that was the argument they made in the petition. [00:04:15] Speaker 03: So if they're going to change the argument of the petition, it would seem that [00:04:19] Speaker 03: They don't get to do that. [00:04:22] Speaker 00: Now, the PTAB found the combination improves dexterity. [00:04:26] Speaker 00: I think if you looked at JA36, it would say that. [00:04:29] Speaker 00: What is the difference between dexterity and articulation in your view? [00:04:33] Speaker 03: Well, I think that when the PTAB found that, it was copying some language out of the declaration that Intuitives expert provided, but it wasn't thinking it through because the expert [00:04:48] Speaker 03: Ultimately had to back up and say I no longer say rotation is necessary. [00:04:52] Speaker 03: I no longer say force feedback is there I no longer say articulation is there and they moved to an embodiment that had none of that and so when he made all those statements he then undercut all those statements by saying you don't have the things that make it dexterous and when the Pete when the p-tab found that [00:05:11] Speaker 03: I think they didn't think it through because the PTAB didn't find that it rotated or articulated at force feedback either. [00:05:16] Speaker 00: So are you saying there's a difference between dexterity and articulation or are you saying there is no difference? [00:05:21] Speaker 00: I'm just trying to understand the answer you're giving me. [00:05:24] Speaker 03: I think there's a subtle difference between the two. [00:05:26] Speaker 00: And what is that? [00:05:28] Speaker 03: I think dexterous would be something like metani where you can very nimbly move things with those very fine cables. [00:05:38] Speaker 03: Articulation is where you can, you know, typically either swing something through a hinge point or else bend something to change the angle of approach. [00:05:47] Speaker 03: So I think the two are different. [00:05:49] Speaker 03: But the reason that dextrous is an odd word for the PTAB to pick here is that it officially found that none of the Methani cables were going to be used in this combination that it put together. [00:05:58] Speaker 03: So the things that made Methani dextrous, it left out. [00:06:01] Speaker 03: It left out all the Methani cables. [00:06:03] Speaker 03: It went straight to this [00:06:05] Speaker 03: combination where you take the Hooven shaft, you stick it inside of a rigid shaft from Tierney, and you don't let it bend anymore. [00:06:13] Speaker 03: So it used to be, when it was operated by hand, that the doctor could move the handle around and bend the shaft and get it to maneuver it to better places. [00:06:22] Speaker 03: Now they remove that ability. [00:06:23] Speaker 03: It can no longer do that. [00:06:25] Speaker 03: That was its sort of articulation. [00:06:28] Speaker 03: It articulated by simply letting the doctor move it around and bend it. [00:06:31] Speaker 03: They got rid of that. [00:06:33] Speaker 03: put the flexible shaft inside of a rigid shaft and then tightly fixed the linear stapler to the end of that rigid shaft. [00:06:42] Speaker 03: When Tierney put a simple clip applyer at the end of that shaft, Tierney taught that you need both rotation and articulation of that single clip applyer to get it in the right spot. [00:06:52] Speaker 03: They're not taking off a single clip. [00:06:54] Speaker 04: The board found that wrist articulation was not a requirement. [00:06:58] Speaker 04: for a robotic stapler that A40 and A41. [00:07:02] Speaker 04: I mean, you know, there's a finding there. [00:07:07] Speaker 04: What's the matter with the finding? [00:07:09] Speaker 04: Why is that not supported by substantial evidence? [00:07:13] Speaker 03: Articulation is not a requirement of the claim. [00:07:16] Speaker 03: We would agree with that. [00:07:17] Speaker 03: But in the context of looking at [00:07:20] Speaker 03: motivation to combine, when you take two things that articulate, two things that rotate, and two things with forced feedback, combine them to get rid of those critical features to be safe in the operating room, and end up with something that is just simply a probe, you can stick in a patient's body. [00:07:33] Speaker 04: We disagree, but the board found otherwise. [00:07:38] Speaker 04: So you may be right, they may be right, but we have to sustain them if what they decided was supported by substantial evidence. [00:07:47] Speaker 03: I submit there's no substantial evidence because they undercut the testimony that's given to them about it being dexterous. [00:07:56] Speaker 03: They undercut it by getting rid of articulation. [00:07:58] Speaker 03: They get rid of it by getting rid of rotation. [00:08:01] Speaker 03: They get rid of it by getting rid of force feedback. [00:08:05] Speaker 01: Counsel, are these patents both expired? [00:08:08] Speaker 03: I'm sorry? [00:08:09] Speaker 01: Are these patents both expired? [00:08:12] Speaker 03: No, but I believe it's very soon if they're not. [00:08:15] Speaker 01: I think they had a date of early 22. [00:08:18] Speaker 03: That may be true, Your Honor, yes. [00:08:21] Speaker 01: Is there any other litigation going on with respect to them? [00:08:25] Speaker 03: There's one other patent that's in this family that has an IPR that we appealed. [00:08:29] Speaker 03: And it's about three or four months behind this appeal. [00:08:32] Speaker 01: But nothing in the district courts. [00:08:34] Speaker 03: There's an underlying district court action on these three patents, yes. [00:08:37] Speaker 03: It's in Delaware, Your Honor. [00:08:41] Speaker 03: But the other struggle we have, we believe that PTAB committed legal error. [00:08:45] Speaker 03: when it looked at the challenge claims and said, that's all we're going to look for, because that's using hindsight analysis to say, OK, we have the claim elements. [00:08:52] Speaker 03: Let's go find them in the ART. [00:08:53] Speaker 03: And once we find them, we're going to stop. [00:08:55] Speaker 03: And we're not going to ask, is that combined thing something a doctor would want to use? [00:08:59] Speaker 03: Is that combined thing something we've motivated to combine to make? [00:09:02] Speaker 03: Separately, they looked at the Tierney prior ART, and they looked at the Tierney prior ART claims. [00:09:07] Speaker 03: And they used the claims of the prior ART to assess whether or not articulation was necessary, which, of course, there's no legal basis to do that. [00:09:15] Speaker 03: There was no new argument about rotation. [00:09:22] Speaker 03: What happened is that shaft from Tierney rotates. [00:09:25] Speaker 03: And it rotates because there's a cable in figure four that wraps around the end of it and lets the shaft rotate. [00:09:31] Speaker 03: In the reply briefed and intuitive file in the IPR, they got rid of the cables. [00:09:35] Speaker 03: When you get rid of the cables, you get rid of the rotation. [00:09:38] Speaker 03: Once you get rid of the rotation, the rotation argument becomes right. [00:09:40] Speaker 03: And that's why we brought it up in our [00:09:44] Speaker 03: syrup libraries but but it wasn't available until then because until then they were still using cables as I said during the IPR became apparent that with the forces that work here cable slip cable stretch cables can't be used and so they change their position mid IPR [00:10:00] Speaker 03: And they went to a system that got rid of the platitudes about all the benefits of medhani and all the benefits of huvun and rotation and articulation. [00:10:10] Speaker 03: It got rid of all that. [00:10:12] Speaker 03: And it got a rigid structure that if you stuck it in somebody's body and tried to use it, it wouldn't be safe. [00:10:18] Speaker 03: You'd be misaligning staples, people would be bleeding to death. [00:10:21] Speaker 03: And the FDA's letter showed that when you close somebody up and you haven't stapled them together properly, you have death or serious injury as a result, because you can't detect it when they're [00:10:31] Speaker 03: when they are, after they've been closed up. [00:10:34] Speaker 03: On the position sensor, we're not asking for a different claim construction. [00:10:39] Speaker 03: It's a position sensor configured to indicate a distance moved by the fastener. [00:10:44] Speaker 03: And so we say on the Plane Ordering meaning of that, a contact at the end of Hooven that simply indicates the sled has traveled to the end is not a position sensor that indicates a distance moved by the fastener. [00:10:58] Speaker 03: Our experts said there's three reasons for that. [00:11:01] Speaker 03: It's not active during formation of any of the staples. [00:11:05] Speaker 03: The output of that contact is not a position of a staple. [00:11:08] Speaker 03: And it does not sense the distance moved by any of the staples, which the plain lines that claim. [00:11:13] Speaker 00: Can I ask you a little bit about that rotation argument? [00:11:15] Speaker 00: If you look at appendix 173 to maybe 174, I just want to understand whether or not it actually, in the IPR petition itself, raised that issue such that it should have been addressed [00:11:30] Speaker 00: long before a sir reply. [00:11:32] Speaker 00: I felt potentially there was notice of the issue earlier. [00:11:35] Speaker 03: In which page in particular? [00:11:37] Speaker 00: Appendix page 173. [00:11:39] Speaker 00: Tell me if I'm understanding this correctly. [00:11:43] Speaker 00: I thought potentially there was notice of any sort of rotation argument by reading what is put into the IPR petition itself on appendix 173 to 174. [00:11:53] Speaker 00: But I want to make sure I'm understanding it correctly. [00:11:58] Speaker 03: I don't believe it is. [00:11:59] Speaker 03: And the reason is because this is not the section that shows the combination where you stick Huvan inside of Tierney. [00:12:06] Speaker 03: Because Tierney is a rotating shaft, and they were going to put Huvan inside of the rotating shaft. [00:12:12] Speaker 00: So it at least says on this page, Tierney slash Huvan system. [00:12:17] Speaker 00: Right at the top of that page it says that. [00:12:19] Speaker 03: They combined it two ways with Huvan. [00:12:22] Speaker 03: In one way they left the flexible shaft out there, and in the other way they did not. [00:12:27] Speaker 03: And so it's the way they did not, that it still rotates. [00:12:30] Speaker 03: Because in the version of Hooven and Tierney, where you put the Tierney rigid shaft on the outside, that Tierney rigid shaft still rotates. [00:12:40] Speaker 03: On the one where the shaft is just flexible, the PTAB expressly said, we're not going to consider that one in one of the footnotes. [00:12:48] Speaker 03: The PTAB said, we're not looking at that one. [00:12:49] Speaker 03: We're just looking at the one where the shaft is rigid on the outside. [00:12:54] Speaker 01: Counsel, you're into your own rebuttal, John. [00:12:56] Speaker 01: You can save it or continue. [00:12:58] Speaker 03: Your Honor, I'll save it. [00:12:59] Speaker 03: And thank you. [00:13:02] Speaker 02: Mr. Katz. [00:13:02] Speaker 02: Thank you, Your Honors. [00:13:04] Speaker 02: May it please the court. [00:13:06] Speaker 02: Let me just pick up addressing the two questions that Judge Cunningham raised. [00:13:11] Speaker 02: Maybe to start with Judge Icke's question. [00:13:12] Speaker 02: Yes, there is substantial evidence supporting the board's decisions throughout. [00:13:16] Speaker 02: But the specific questions that Judge Cunningham raised, you asked what the difference between dexterity and articulation. [00:13:22] Speaker 02: They are very different. [00:13:23] Speaker 02: Dexterity means sensitivity of movement. [00:13:27] Speaker 02: Robotics give you that because a robotic, for instance, we talk, our expert says, has tremor reduction. [00:13:34] Speaker 02: So a robot can be much more precise than a human hand. [00:13:38] Speaker 02: That's the dexterity that robots offer. [00:13:40] Speaker 02: In fact, Hoeven, I don't think uses the word dexterous, but Hoeven starts out, and it's quoted by both parties, that it provides a high degree of control of an instrument. [00:13:52] Speaker 02: That's achieved because it has sensors in a motorized stapler. [00:13:59] Speaker 02: And so it senses, is there too much pressure, is there too little pressure? [00:14:03] Speaker 02: It's very precise. [00:14:05] Speaker 02: So it provides its own dextrous nature by having a motorized instrument. [00:14:11] Speaker 02: Articulation, I think, as my colleague stated, is simply bending back and forth of the device. [00:14:19] Speaker 02: So dexterity and articulation are two fundamentally different things. [00:14:23] Speaker 02: And Judge Cunningham, you just ended by asking whether the petition was discussing rotation in that embodiment. [00:14:34] Speaker 02: The word rotation isn't there, but in that embodiment, where you would use Tierney's motor. [00:14:39] Speaker 02: Obviously Tierney would provide all of its features and there would be rotation there. [00:14:44] Speaker 02: The board did rely on the other embodiment where the Hooven motor is used. [00:14:50] Speaker 02: And just to be very clear, our position has never been and is not that there is no rotation in the device. [00:14:59] Speaker 02: What our position is that we didn't mention the word rotation because it wasn't in the claims. [00:15:05] Speaker 02: And once they brought it up, ultimately, which was in the surreply, we argued, well, now it's too late to add any evidence. [00:15:15] Speaker 02: But in fact, of course rotation is possible. [00:15:17] Speaker 02: In fact, our expert had already testified, and actually I believe it is in the record, we give a side view, that of course rotation is possible. [00:15:25] Speaker 02: It just isn't required by the claim. [00:15:28] Speaker 02: And so we've heard repeatedly that various features are absent from the combination. [00:15:34] Speaker 02: That's not the position at all. [00:15:36] Speaker 02: What our position was is that we did not discuss those articulation or rotation specifically in the petition because those are features not claimed. [00:15:46] Speaker 02: Not that they would be absent from the combination, but there was no need to discuss them in the petition. [00:15:52] Speaker 02: And the board's decision walks through that. [00:15:54] Speaker 02: And so first of all, if I can just take a step back. [00:15:57] Speaker 02: This is a substantial evidence case. [00:16:00] Speaker 02: And so it's not time to re-argue the merits. [00:16:04] Speaker 02: The board has made its decision. [00:16:06] Speaker 02: The question is, is the decision supported? [00:16:09] Speaker 02: For the 395 patent, the sole question is motivation to combine. [00:16:13] Speaker 02: It's the only question. [00:16:14] Speaker 02: Everything else is not on appeal. [00:16:17] Speaker 02: And in pages 34 and 35 of the appendix, [00:16:21] Speaker 02: the board walks through the evidence of the motivation to combine, citing Tyranny, citing Hoeven, citing Dr. Fisher. [00:16:30] Speaker 02: Now, P-TECH doesn't actually come back and criticize any of that analysis as far as it goes. [00:16:38] Speaker 02: They don't say Dr. Fisher was wrong. [00:16:39] Speaker 02: What they come to this court and say is, well, wait a minute. [00:16:42] Speaker 02: The board did not give adequate consideration to these additional features. [00:16:47] Speaker 02: So they're not really arguing the petition was inadequate. [00:16:50] Speaker 02: And as far as it went, they're just saying, oh, by the way, we now have kind of affirmative rebuttal evidence, if you will, that if you don't have articulation, if you don't have feedback, the product won't work. [00:17:03] Speaker 02: The problem is that even their evidence didn't establish that. [00:17:06] Speaker 02: But that's neither here nor there. [00:17:07] Speaker 02: The issue is we offered substantial evidence showing that those things weren't required. [00:17:13] Speaker 02: And the board agreed with us. [00:17:14] Speaker 02: And so on articulation, [00:17:18] Speaker 02: on pages 39 to 40 of the appendix, the board goes through the evidence. [00:17:23] Speaker 02: I think the board states specifically that they made the finding that a risk is not required. [00:17:29] Speaker 02: The board cited a number of pieces of evidence that cited Tierney itself, which begins at appendix 2554, where Tierney says the system can often articulate. [00:17:44] Speaker 02: So right there, Tierney is not suggesting articulation is mandatory. [00:17:48] Speaker 02: The board cited the Tovey reference. [00:17:50] Speaker 02: This is at 2940. [00:17:52] Speaker 02: Tovey begins, and specifically 2945 shows a stapler. [00:17:56] Speaker 02: It does not have articulation. [00:17:59] Speaker 02: The board cited Dr. Fisher's testimony, Appendix 3345, where Dr. Fisher discusses why wrist articulation is not necessary. [00:18:09] Speaker 02: In addition, the record even shows additional staplers that lacked a wrist. [00:18:15] Speaker 02: So, counsel got up here and just said that, well, without a wrist, it's not safe, but the record includes even other surgical staplers that lack a wrist. [00:18:24] Speaker 02: There was a LESSI at Appendix 3620 and NODEL at 3645. [00:18:29] Speaker 02: Clearly a risk is not required in the board's decision in that regard is supported by substantial evidence. [00:18:38] Speaker 02: On tactile feedback, what's interesting is that the argument was a different argument for the board and the board addressed the argument made. [00:18:47] Speaker 02: The board was asked to hold that the Madani cables which provide very highly sensitive tactile feedback is required. [00:19:00] Speaker 02: And the board found the Madani cables are not required. [00:19:03] Speaker 02: Therefore, force feedback, in that sense, is not required. [00:19:07] Speaker 02: The Madani force feedback. [00:19:08] Speaker 02: And so the board did reach the issue that was raised. [00:19:11] Speaker 02: There was never an argument that a stapler without any tactile feedback is inoperable. [00:19:18] Speaker 02: That was never the argument. [00:19:19] Speaker 02: The argument was somehow the principles of operation of tyranny of Mahoney require force feedback, and they do not, as the board found. [00:19:32] Speaker 02: Turning to rotation, obviously the board was within its discretion to not consider it. [00:19:38] Speaker 02: P-TECH concedes it was raised in certify. [00:19:42] Speaker 02: They say they're able to do that because they didn't know that somehow cables wouldn't be used in at least one of the embodiments. [00:19:55] Speaker 02: I'm not sure that's possible. [00:19:57] Speaker 02: Clearly our discussion said there are cable versions, but there's also geared versions. [00:20:03] Speaker 02: So they knew that there would certainly be embodiments without cables. [00:20:08] Speaker 02: And so the board was certainly within its rights to just not address rotation. [00:20:13] Speaker 02: Interestingly, as we point out a footnote in our brief, rotation was raised earlier in the next IPR, the one that's now briefing is underway. [00:20:25] Speaker 02: where the board considered the rotation arguments that, of course, the system can rotate. [00:20:29] Speaker 02: That's not a grounds for finding something. [00:20:34] Speaker 02: The combination wouldn't work. [00:20:36] Speaker 02: So the board has addressed rotation, just not in this case, and sided with intuitive surgical once again. [00:20:41] Speaker 04: What's the relationship between the pending case and this one? [00:20:45] Speaker 02: It is a continuation patent, so it's identical specification. [00:20:50] Speaker 02: It's the same combinations at issue, so a lot of very similar issues are raised, and I believe we're filing our appellee brief in a week or so. [00:21:00] Speaker 02: Similarly expired. [00:21:02] Speaker 02: Because it's continuation, they would expire at the same time. [00:21:05] Speaker 02: confess, I don't know the date of expiration offhand. [00:21:08] Speaker 01: The original date was March 02. [00:21:11] Speaker 02: I don't know the extent to which they got extra days from the patent officer or not. [00:21:16] Speaker 02: They didn't on these cases. [00:21:21] Speaker 02: Because I assume a terminal disclaimer must be in the records. [00:21:23] Speaker 02: I'm assuming they would stand or fall altogether on the date. [00:21:28] Speaker 02: Finally, on the position sensor, [00:21:31] Speaker 02: you know, obviously substantial evidence is in the record supporting why Hoeven has a position sensor. [00:21:39] Speaker 02: The argument being made really is kind of one of flame construction. [00:21:43] Speaker 02: I mean, they're saying in their, actually in their reply brief in this court, they try to change the word from indicate a distance [00:21:51] Speaker 02: to sense a distance. [00:21:53] Speaker 02: So that is really a claim construction argument. [00:21:55] Speaker 02: They waved it. [00:21:56] Speaker 02: They didn't make that argument below. [00:21:58] Speaker 02: What you heard here today is that somehow the physician sensor in Hooven doesn't count because missing three attributes. [00:22:08] Speaker 02: None of those three attributes are in the claim. [00:22:10] Speaker 02: And that is precisely what the board held. [00:22:12] Speaker 02: And that is certainly supported by substantial evidence. [00:22:15] Speaker 02: In fact, there's just really no question they're not in the claim. [00:22:18] Speaker 02: The more is known for the questions, I yield the rest of my time. [00:22:23] Speaker 01: No one ever loses points for not using up all their time. [00:22:27] Speaker 01: Thank you, Mr. Katz. [00:22:29] Speaker 01: Mr. Evans has some bottle time, about two minutes. [00:22:33] Speaker 03: Thank you, Your Honor. [00:22:36] Speaker 03: First, with respect to articulation, every structure is different. [00:22:42] Speaker 03: If you have a linear stapler that literally is long, and it's going to be putting in a whole lot of staples, [00:22:48] Speaker 03: It's a whole lot trickier to align that with the tissue than if you have a single stapler. [00:22:55] Speaker 03: And so when we talk about combinations, they're talking about taking a rigid shaft. [00:23:02] Speaker 03: They're talking about at the end of it, hooking up a rigid linear stapler. [00:23:06] Speaker 03: And then it's like a poking stick. [00:23:08] Speaker 03: You can't articulate that thing at the end. [00:23:10] Speaker 04: Well, you may well believe what you're saying, but we have to go with the record that's before us. [00:23:15] Speaker 04: Your argument is not evidence. [00:23:19] Speaker 03: But the structure is evidence. [00:23:20] Speaker 03: And the structure that the board found is that there's no risk there. [00:23:23] Speaker 03: The board found there was no risk between the linear stapler and the rigid shaft. [00:23:28] Speaker 03: That's what the board found. [00:23:29] Speaker 03: That is the structure they're imposing on us. [00:23:32] Speaker 03: And we're saying that a person of skill in the art who is trying to align that stapler with tissue and not have it misfire and have the person bleed to death is going to need more than just simply something at the end of a shaft to align the stapler with the tissue. [00:23:48] Speaker 03: When it comes to rotation, it did rotate as presented in the petition and they brag about it rotating in the petition. [00:23:55] Speaker 03: And then they took the cables away. [00:23:56] Speaker 03: The cables would allow that Hooven-Tierney combination originally to rotate because the rigid shaft 102 of Tierney does rotate. [00:24:05] Speaker 03: Figure four of Madhani and figure four A of Tierney show the different cable structures to make it rotate. [00:24:11] Speaker 03: They announced in their reply brief that they're not going to use cables. [00:24:16] Speaker 03: And once you take the cables away, you lose the rotation. [00:24:18] Speaker 03: And once you lose the rotation, that's when you have the additional problem that the jaws now are stuck in an orientation. [00:24:24] Speaker 03: You can't even rotate them this way. [00:24:25] Speaker 03: So now you can't articulate them. [00:24:27] Speaker 03: You can't rotate them. [00:24:29] Speaker 03: You just have two jaws stuck at the end of a rigid shaft. [00:24:32] Speaker 00: Let me just cross a loop on your position sensor argument. [00:24:35] Speaker 00: If you look at appendix page 89, the top of it, if you've got the appendix available, [00:24:43] Speaker 02: Yes, Your Honor. [00:24:44] Speaker 00: No, and the problem with that is it's the movement of the firing nut. [00:24:58] Speaker 03: The firing nut is sitting in there between two different threaded portions. [00:25:02] Speaker 03: In the first portion, the firing nut opens and closes the jaws. [00:25:07] Speaker 03: And in the second portion, it nudges forward the wedge, then picks up its own threaded section to actually move to do the staples. [00:25:13] Speaker 03: And so the firing nut is not going to sense the position of the staples during formation. [00:25:23] Speaker 01: Counsel, your time is up. [00:25:24] Speaker 01: Do you have a final thought? [00:25:26] Speaker 03: Thank you, Your Honors. [00:25:27] Speaker 03: I appreciate your time. [00:25:28] Speaker 01: We appreciate both of your articulations of your positions. [00:25:34] Speaker 01: Case is submitted.