[00:00:00] Speaker 02:
1-1166, Raytheon Technologies versus General Electric Company.

[00:00:05] Speaker 02:
Mr. Dreier, whenever you're ready.

[00:00:08] Speaker 01:
Good morning, Your Honors, and may it please the Court, Christopher Dreier, representing Raytheon Technologies and its Pratt & Whitney Division.

[00:00:16] Speaker 01:
In the prior appeal, this Court rejected GE's and the Board's construction of bond layer, under which any intermediate layer meeting the other requirements of the claims was a bond layer.

[00:00:30] Speaker 01:
this court held that only a layer of material designed to adhere another layer to a substrate is a bomb layer.

[00:00:37] Speaker 01:
On remand, the board made two critical errors.

[00:00:41] Speaker 01:
First, it applied this court's construction to the wrong thing.

[00:00:45] Speaker 01:
And second, it misapplied the construction in so doing.

[00:00:50] Speaker 01:
Starting with the first error, the board held on pages 11 to 12 of the final written decision

[00:00:56] Speaker 01:
that the Tarantiva references optional outer layer is not present in the modified article of Tarantiva proposed by GE.

[00:01:06] Speaker 01:
Yet, when analyzing whether that modified article meets the bond layer limitation, the board explicitly relied on that same optional outer layer being present.

[00:01:17] Speaker 01:
And indeed, the board said that the optional outer layer meets a structural element of the claim as construed

[00:01:25] Speaker 01:
...another layer required by this court's construction.

[00:01:31] Speaker 01:
This contradiction in the final written decision is not a procedural error, as the TE suggests.

[00:01:37] Speaker 01:
It's a substantive legal error.

[00:01:40] Speaker 02:
The optional outer layer... Well, Mr. Dreier, this is Judge Proce.

[00:01:44] Speaker 02:
I take your... Yes, ma'am.

[00:01:45] Speaker 02:
I understand, I think, what you're saying, but just let me try to... Is it your view that... Is it Tarantiva?

[00:01:53] Speaker 02:
that the board at most found that Tarantiva discloses a layer capable of but not designed to adhere.

[00:02:02] Speaker 02:
And then you sort of complain that this is kind of a functional limitation in the design to and not sufficient.

[00:02:10] Speaker 02:
Is that a kind of correct analysis of your argument?

[00:02:15] Speaker 01:
In part, Your Honor, I think that's a correct analysis of the second error that I hadn't gotten to yet.

[00:02:22] Speaker 01:
But I think there's, even before that problem, there's a threshold question of whether the board can simultaneously rely on this optional outer layer as being the another layer as it does on page 19, after the board itself found that this optional outer layer is not present in the modified article that we're supposed to be comparing to the claim.

[00:02:52] Speaker 01:
I mean, the optional outer layer here, I mean, it's not Schrodinger's layer.

[00:02:58] Speaker 01:
It can't be both present and not present in the same article at the same time.

[00:03:03] Speaker 01:
And so our point is, with the first error, that they can't have it both ways.

[00:03:09] Speaker 01:
The board could choose between saying, OK, yes, the optional outer layer is present in combination.

[00:03:16] Speaker 01:
And then they would have had to meaningfully address our argument that it was an improper new argument.

[00:03:22] Speaker 01:
which they didn't have to confront because of their finding that it wasn't present.

[00:03:28] Speaker 01:
Or they could say that, you know, it's not present, in which case they can't say then that the optional outer layer meets the claim limitation.

[00:03:37] Speaker 01:
And it has to be one or the other.

[00:03:39] Speaker 01:
It can't be both.

[00:03:41] Speaker 01:
And so I think that alone is a sufficient basis to reject at least the board's primary rationale for finding the bond layer limitations satisfied.

[00:03:53] Speaker 01:
Turning to the second error, which you alluded to, Judge Perot, it really is a question of what does this court's construction mean?

[00:04:02] Speaker 01:
The board misinterpreted this court's construction because in purporting to apply the construction, the board focused just on whether the protective coating of Tarantiva would successfully adhere both to its substrate and to the optional outer layer.

[00:04:20] Speaker 01:
But the language of this course construction doesn't say that a bond layer is any intermediate layer that's capable of successfully adhering to the adjacent materials.

[00:04:30] Speaker 01:
It says that a bond layer must be designed to adhere another layer to a substrate.

[00:04:35] Speaker 01:
And that's a critical difference, because under the board's interpretation, any intermediate layer becomes a bond layer, unless there's no adhesion at all and the whole multilayer coating simply falls apart as soon as you put it to use.

[00:04:50] Speaker 01:
And if that were the case, then this court's construction in the prior appeal isn't meaningfully different from the construction that the board had originally adopted and that this court rejected.

[00:05:01] Speaker 02:
Well, didn't the board, this is Judge Proust again, didn't the board find that Curitiba's layer has an adherence quality?

[00:05:12] Speaker 01:
The board did find that it has an adherence quality.

[00:05:15] Speaker 02:
And it relied on the evidence

[00:05:18] Speaker 02:
and the expert testimony and stuff in which we normally defer to?

[00:05:25] Speaker 01:
Yes, Your Honor, but there's a serious problem with that analysis.

[00:05:29] Speaker 01:
Both of the experts in this case agree that the functionality of these layers is highly context sensitive.

[00:05:39] Speaker 01:
It's not a matter of just looking at a layer and say, oh, it has adhesive properties, and so we can assume

[00:05:47] Speaker 01:
that no matter what system you put it into, it's always going to adhere well to everything that's next to it.

[00:05:53] Speaker 01:
You have to look at how, not just whether it has adhesive properties, but whether it adheres to the particular material that it's being used with.

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And that's the evidence that was really missing in this case, is that GE's expert and its other evidence

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never addressed adhesion in the context of the combination, which is whether Tarantiva's protective coating is adhering a BSAS layer from Eaton to a substrate.

[00:06:34] Speaker 01:
It's all looking at adhesion in different contexts.

[00:06:39] Speaker 01:
For instance, the board relies on Tarantiva says that it's

[00:06:44] Speaker 01:
protective coating adheres well to Tarantiva substrate.

[00:06:48] Speaker 01:
We never disputed that.

[00:06:50] Speaker 01:
We agree that Tarantiva's protective coating has some adhesive properties, but the question remains whether those adhesive properties are such that it is necessarily designed to adhere Eaton's PSAS layer to a substrate.

[00:07:07] Speaker 03:
This is Judge Gunn.

[00:07:09] Speaker 03:
Tarantiva's bond layer is

[00:07:13] Speaker 03:
the same composition as your bond layer disclosing the patent, right?

[00:07:19] Speaker 01:
No, Your Honor.

[00:07:20] Speaker 01:
That's not an accurate characterization.

[00:07:23] Speaker 01:
What the claims of the 360 patent require is they require that a bond layer be made out of at least comprising certain materials, namely, molybdenum and silicon.

[00:07:36] Speaker 01:
And we don't dispute that Tarantiva's protective coating meets that compositional requirements.

[00:07:43] Speaker 01:
But the particular composition of Tarantiva is not described anywhere in the 360 patent, nor is there any evidence that every single compound comprising molybdenum and silicon functions the same way.

[00:08:03] Speaker 03:
Does that answer your question?

[00:08:04] Speaker 03:
But Tarantiva talks about its adhesive quality and how it's quite strong in order to

[00:08:13] Speaker 03:
handle all kinds of difficult conditions so that its coating doesn't get swept off of the surface that it's applied to.

[00:08:21] Speaker 03:
Isn't that right?

[00:08:24] Speaker 01:
Yes, Your Honor, that's right.

[00:08:27] Speaker 03:
I guess the concern I have here is that I agree with you that this board decision focuses heavily on the adherence and stickiness of Tarantiva's protective layer to the substrate it's to be applied on.

[00:08:43] Speaker 03:
But at the same time, the board does credit Dr. Glazer, who said, and the board is, well, the board is saying at A16 that when the outer refractory layer is present in Tarantiva, the coating layer, which is now an intermediate layer, would adhere to both the underlying substrate and the refractory layer overlaid on it.

[00:09:09] Speaker 03:
The board talks about how quote Tarantiva describes the adhesive quality of its protective coating in significantly greater detail than the 360 patent.

[00:09:19] Speaker 03:
As we just discussed, the materials as you recite an acclaim for your bond layer are the same as the materials used in Tarantiva.

[00:09:30] Speaker 03:
So I guess when we put all of that together, what we come away with is a finding by the board that

[00:09:39] Speaker 03:
this bond layer in this Tarantiva reference has very good adhesive properties.

[00:09:47] Speaker 03:
It may also be a protective layer, but it's still at bottom also a bond layer.

[00:09:54] Speaker 03:
And I don't know how we can say in the face of all this that that's unreasonable and must be overturned because there's really no other way to read Tarantiva's reference as just being

[00:10:08] Speaker 03:
some random layer that slid between two other layers.

[00:10:12] Speaker 03:
Can you respond?

[00:10:14] Speaker 01:
Yes, Your Honor.

[00:10:15] Speaker 01:
There's only two issues with that line of reasoning.

[00:10:19] Speaker 01:
And I'd like to start with the first one on Appendix 16, where you quoted the board.

[00:10:25] Speaker 01:
And the board is quoting to GE's remand briefing.

[00:10:29] Speaker 01:
And then, you know, parenthetically, it cites the underlying evidence with Dr. Glazer's testimony.

[00:10:37] Speaker 01:
And the first problem is that the underlying testimony by Dr. Glazer doesn't actually support the proposition that GE cited it for in their remand brief.

[00:10:51] Speaker 01:
Dr. Glazer never identified and never put forward any testimony about whether Tarantiva's protective coating would adhere to, at least to the refractory layer on top of it.

[00:11:06] Speaker 01:
And of course, there's no dispute that it would adhere to the underlying substrate.

[00:11:12] Speaker 01:
But GE's expert didn't address adhesion in even the context of Timotheeva's outer layer, much less once you modify that article and you replace the outer layer with Eaton's BSAS layer.

[00:11:26] Speaker 01:
He certainly never said, oh, and it would still adhere just as well once you make that change.

[00:11:32] Speaker 01:
That's not a testimony that exists in the record.

[00:11:36] Speaker 01:
And there's really a critical failure of proof on that point.

[00:11:41] Speaker 01:
So don't be fooled by the board quoting GE's brief, which does not accurately represent the underlying evidence in the record.

[00:11:52] Speaker 01:
The second problem goes to this issue of what does this court's construction mean?

[00:11:57] Speaker 01:
What does designed to adhere mean something more than just, you know, it happens to adhere?

[00:12:04] Speaker 01:
And our answer is yes.

[00:12:08] Speaker 01:
And the easiest way that I can think of to illustrate the point is you can have an intermediate layer that adheres very well to an outer layer and a substrate.

[00:12:21] Speaker 01:
but still doesn't adhere as well as the outer layer would adhere to the substrate if you didn't even have the intermediate layer.

[00:12:30] Speaker 01:
So in that scenario, it wouldn't make sense to say that the intermediate layer is designed to adhere the outer layer to the substrate.

[00:12:41] Speaker 01:
After all, the outer layer would adhere even better if the intermediate layer wasn't present.

[00:12:46] Speaker 01:
It must be serving some other function, and that's why it's there.

[00:12:50] Speaker 01:
And that's the objective meaning that we really think that the court's construction has when it uses the phrase designed to.

[00:12:58] Speaker 01:
We think that means that the function of the layer is to provide adherence to otherwise would be inadequate or missing in some respect.

[00:13:09] Speaker 01:
And that is not an issue on which GE ever put forth an evidence.

[00:13:17] Speaker 01:
They certainly never said, for instance, that Tarantiva's protective coating helps adhere the outer layer to the substrate.

[00:13:25] Speaker 03:
So, hypothetically, what if we disagree and we don't think its bond layer should be defined in such a way that it's a very situational kind of thing where sometimes we look at a substance and it's a bond layer and other times when we look at it, it's not a bond layer, that it's just intrinsically

[00:13:47] Speaker 03:
Does it have adhesive qualities or not?

[00:13:50] Speaker 03:
What if we think that's what the claim construction is?

[00:13:54] Speaker 01:
Well, Your Honor, first of all, I think this court already construed bot layer.

[00:13:59] Speaker 01:
And I think the language that this court adopted.

[00:14:01] Speaker 03:
OK, I'm just asking a hypothetical, though.

[00:14:04] Speaker 01:
Yes.

[00:14:04] Speaker 01:
So if this court concludes that what its construction really means is just that the layer has adhesive properties.

[00:14:15] Speaker 01:
then I think there's substantial evidence supporting the idea that Tarantiva's protective coding is a bond layer in the context of Tarantiva's embodiments where the optional elder layer is present.

[00:14:30] Speaker 01:
But I don't think there's any evidence supporting the proposition that it's still a bond layer when you replace the optional elder layer with Eaton's BSAS layer.

[00:14:43] Speaker 01:
because the experts in this case both agreed that you can't look at a layer's functionality in isolation and say, oh, well, it's adhesive, so it'll stick to anything.

[00:14:56] Speaker 01:
Rather, what the experts both said is you have to look at the particular interface between things.

[00:15:04] Speaker 01:
That's what Dr. Glazer said at appendix 1409 to 1410.

[00:15:08] Speaker 01:
And Raytheon Technologies expert Dr. Clark

[00:15:13] Speaker 01:
explained at length, the appendix 675 to 676, how you have to perform this very context-sensitive analysis.

[00:15:22] Speaker 01:
You have to put the layers together and then test them to know how they'll work.

[00:15:27] Speaker 01:
You can't just say, well, this layer exhibits this property in one context, so it'll do it in other contexts as well.

[00:15:35] Speaker 01:
That doesn't work.

[00:15:36] Speaker 01:
And to the extent that was the board's reasoning, and respectfully, I don't think that's in the final written decision.

[00:15:43] Speaker 01:
We don't think that's supported by substantial evidence.

[00:15:49] Speaker 01:
I think I heard the bell, so I'll reserve the rest of my time and let them take questions.

[00:15:54] Speaker 02:
Thank you.

[00:15:55] Speaker 02:
Yeah, I heard the bell too.

[00:15:56] Speaker 02:
Let's hear from Mr. Pepe.

[00:16:00] Speaker 00:
Thank you.

[00:16:01] Speaker 00:
Good morning, Your Honors, and may it please the Court, Christopher Pepe, for appellee GE.

[00:16:07] Speaker 00:
This Court should affirm the Board's final written decision on remand that all claims of the 360 path and are invalid as obvious.

[00:16:14] Speaker 00:
And there are two issues that I'm going to address.

[00:16:16] Speaker 00:
The first is that the Board correctly applied the claim construction of bond layer that this Court set forth in the prior appeal concerning this IPR.

[00:16:25] Speaker 00:
And the second is that substantial evidence supports the board's determination that G's combination includes a bond layer under this court's construction and also supports the board's conclusion that G's combination includes a bond layer under the claim construction argument that Raytheon has advanced in this appeal.

[00:16:44] Speaker 00:
So I'm going to start with the claim construction issue.

[00:16:47] Speaker 00:
In the prior appeal, this court determined that a bond layer means a layer of material designed to adhere another layer to a substrate.

[00:16:56] Speaker 00:
Raytheon has argued in its briefing that this design to adhere has a certain meaning.

[00:17:01] Speaker 00:
I believe the court already answered this question in the prior appeal.

[00:17:05] Speaker 00:
And so if we look at appendix, starting at appendix 2094, which is this court's prior decision,

[00:17:12] Speaker 00:
The court explained that UTC argued that the bond layer should be interpreted as having some adherence quality.

[00:17:20] Speaker 00:
So designed to adhere in this context based on what UTC previously means that there's an adherence quality.

[00:17:29] Speaker 00:
And that's precisely the meaning that the board applied to it.

[00:17:33] Speaker 00:
Now, in the board's final decision, it clearly acknowledged this court's construction and in numerous instances explicitly stated that it was applying that construction, including at appendices 8, 11, 14, 17, and 19.

[00:17:48] Speaker 00:
Now, despite those clear statements that the board was applying the court's construction, Raytheon has asserted that the board somehow committed a legal error with respect to how it applied the construction.

[00:18:00] Speaker 00:
But an objective review of the board's decision demonstrates that's not the case.

[00:18:07] Speaker 00:
So GE had argued in the IPR that the claims would have been obvious based on Tarantino's substrate and protective coating in combination with Eaton's environmental barrier layer.

[00:18:20] Speaker 00:
And so the board, there's no dispute that Tarantiva and Eaton met the substrate environmental barrier layer and composition and location requirements of the bond layer of claim one.

[00:18:31] Speaker 00:
So the only issue the board had to decide with respect to whether the combination met all the limitations of the claim was whether Tarantiva's coding was designed to adhere another layer to a substrate.

[00:18:44] Speaker 00:
And that's exactly what the board did.

[00:18:46] Speaker 00:
First, the board determined that Tarantiva's coating adheres to a substrate, which Raytheon does not dispute.

[00:18:53] Speaker 00:
And second, the board concluded that the coating in Tarantiva also adheres a refractory outer layer to the substrate.

[00:19:02] Speaker 00:
And based on those findings, the board concluded that Tarantiva's protective coating is designed to adhere another layer, such as the refractory outer layer, to the substrate.

[00:19:13] Speaker 00:
And that's all the claim construction of bond layer required the board to do.

[00:19:17] Speaker 00:
Now, there are two critical flaws in Raytheon's argument.

[00:19:22] Speaker 00:
The first is that the construction just required that it be designed to adhere another layer to a substrate.

[00:19:30] Speaker 00:
It didn't require the board to determine whether Tarantiba's protective coating adhered any specific layer to the substrate, as Raytheon is now arguing.

[00:19:40] Speaker 00:
The plain language of claim one requires the barrier layer, a substrate, and a bond layer between the two.

[00:19:47] Speaker 00:
Nothing in the plain language of claim one requires the bond layer to adhere the substrate to the barrier layer.

[00:19:54] Speaker 00:
And similarly, Raytheon's construction of bond layer doesn't require that the bond layer adhere the substrate to the environmental barrier layer.

[00:20:03] Speaker 00:
So the board wasn't required to make that determination under this court's claim construction.

[00:20:11] Speaker 00:
Now, the second problem was... Could you repeat that?

[00:20:15] Speaker 03:
Sure.

[00:20:16] Speaker 03:
What is your conception of the construction?

[00:20:18] Speaker 03:
That there's no requirement that the bond layer have adhesive qualities vis-a-vis the environmental barrier layer?

[00:20:26] Speaker 00:
The plain language of the claim does not require that the bond layer

[00:20:32] Speaker 00:
bond the substrate to the environmental barrier layer.

[00:20:35] Speaker 00:
And I think both parties are in agreement that that is not required of the claim.

[00:20:40] Speaker 00:
The bond layer simply requires that there be adhesive qualities with respect to another layer in the substrate.

[00:20:49] Speaker 00:
Now Raytheon is arguing that the board was required to demonstrate that in the prior art, the bond layer must adhere the environmental barrier layer to the substrate.

[00:21:03] Speaker 00:
And even if the court agrees that that is actually required of the claim construction, which it is not, the board made that determination in the alternative.

[00:21:13] Speaker 00:
Now, Raytheon has focused the court in much of its briefing on a single sentence from the board's decision on Appendix 19.

[00:21:21] Speaker 00:
But the board at Appendix 22 also unequivocally concluded that the protective coding in Tarantiva would adhere Eaton's BS AS barrier layer to the substrate.

[00:21:34] Speaker 00:
In particular, the board stated that it is our finding that Tarantiva's protective coding

[00:21:40] Speaker 00:
would have been understood to work to adhere successfully Eaton's BSAS barrier layer to the substrate when the BSAS layer replaces the optional outer refractory layer.

[00:21:53] Speaker 00:
So even under Raytheon's interpretation of the claims, at Appendix 22, the board clearly made the finding that it needed to find.

[00:22:02] Speaker 00:
So there is no legal error here because the board addressed the bond layer limitation under the court's construction

[00:22:09] Speaker 00:
and it also addressed it under Raytheon's interpretation of the construction.

[00:22:15] Speaker 00:
So the only question becomes whether there's substantial evidence to support the board's determination that Tarantiva's protective coating is designed to adhere a BSAS layer to a substrate, even if that's required of the claim.

[00:22:31] Speaker 00:
Now again, Raytheon only points the court to the board's citation of Eaton at Appendix 19

[00:22:37] Speaker 00:
But at Appendix 22, the board cited a significant amount of evidence that supports its conclusion.

[00:22:45] Speaker 00:
In addition to the clear disclosures in Tarantiva that the protective coating has adhesive qualities, the board also cited the fact that it even describes that the BSAS later is useful when applied to molybdenum silicon alloys, which is what the protective coating of Tarantiva is.

[00:23:06] Speaker 00:
In addition, the board cited the Dr. Glaser's testimony, including paragraphs 54 to 57, which are in appendices 218 to 220.

[00:23:17] Speaker 00:
Those paragraphs are critical because in that testimony, Dr. Glaser explained why Tarantiba's protective layer would be compatible with Econ's environmental barrier layer, including the fact that molybdenum disilicide was known to bond with aluminosilicate.

[00:23:35] Speaker 00:
Now, that's critical because Tarantiva's protective coating comprises molybdenum disulicide, while the BSAS layer of Eaton comprises an aluminosilicate.

[00:23:46] Speaker 00:
So Dr. Glaser's testimony, including at least paragraphs 54 to 57, provides substantial evidence for the board's conclusion that the protective coating of Tarantiva would be understood to adhere the BSAS environmental barrier layer of Eaton to a substrate.

[00:24:06] Speaker 00:
Therefore, so in sum, Your Honors, there was no legal error because the Board applied the proper construction, even under Raytheon's interpretation, and the Board clearly supported its conclusion with substantial evidence as reflected in Appendix 22 of the record.

[00:24:25] Speaker 00:
That's all I have, Your Honors, unless there are any questions.

[00:24:28] Speaker 02:
Hearing none, why don't we move on to Mr. Sauer for five minutes.

[00:24:35] Speaker 02:
If you have anything to add to what's been said.

[00:24:39] Speaker 04:
May it please the court, Peter Stalwart on behalf of the intervener, the USPTO director.

[00:24:45] Speaker 04:
I do not want to repeat the same points that GE's council has made, but I do want to note in particular that belatedly today and in the reply brief, Raytheon has attempted to raise new arguments about reasonable expectations.

[00:25:01] Speaker 04:
Now that was argued before the board and addressed at length in the board's decision.

[00:25:05] Speaker 04:
But Raytheon chose not to raise those arguments in its opening brief to this court.

[00:25:10] Speaker 04:
And under this court's clear precedent, such as in Smith Klein Beecham, the Apotex, those arguments are waived.

[00:25:16] Speaker 04:
And so arguments by Raytheon's counsel about things like functionally context-sensitive

[00:25:26] Speaker 04:
falls directly in that, a reasonable expectation of success when these elements from the two prior art references are combined.

[00:25:34] Speaker 04:
Instead, what we have is a single narrow issue for this court to consider.

[00:25:39] Speaker 04:
Whether the board's finding that the prior art discloses bond layer as construed by this court is supported by substantial evidence.

[00:25:51] Speaker 04:
And what the prior art discloses is a question of fact and therefore is

[00:25:55] Speaker 04:
reviewed simply for substantial evidence.

[00:25:59] Speaker 04:
GE's counsel has already ably pointed out to this court the evidence that the board relied on.

[00:26:04] Speaker 04:
There's ample evidence, not only that the prior art references teach that the layers are capable of having adherence, but that they are designed to, because the adherence is discussed.

[00:26:17] Speaker 04:
And that's particularly clear in view of the point that the board made that

[00:26:24] Speaker 04:
the prior art should not be held to a higher standard of disclosure than the 360 patent itself.

[00:26:30] Speaker 04:
And the 360 patent itself mentions a barrier layer only once in the background of the invention discussing the prior art, and so has no further discussion of the quality of its disclosed bond layer in connection with any particular barrier layer.

[00:26:46] Speaker 04:
And it also, the 360 patent in discussing the prior art

[00:26:50] Speaker 04:
at APPX 50 in column one, describes, you know, multiple different configurations of, to create these environmental barriers in prior art systems, and that describes them as already adherent.

[00:27:08] Speaker 04:
And so that is the baseline in the prior art from which to judge.

[00:27:13] Speaker 04:
And as the board pointed out, there's far more specific description in both

[00:27:20] Speaker 04:
of the adhesive quality of the layers, the need for them to hold together.

[00:27:28] Speaker 04:
And I would add further just from the standpoint of common sense.

[00:27:34] Speaker 04:
We have to consider that all of these disclosures are in the field of aeronautics and are made for use in particular in jet engines where these parts are subjected to extreme conditions

[00:27:48] Speaker 04:
heat over 1,000 degrees, the products of combustion, high velocity.

[00:27:56] Speaker 04:
And these coatings are put in place to protect the underlying materials under those conditions.

[00:28:02] Speaker 04:
So of course, the ability of the coating to maintain its integrity, in other words, to adhere together, is going to be an obvious, forgive my use of that word,

[00:28:14] Speaker 04:
inclusion in compiling or creating any of these environmental barriers.

[00:28:19] Speaker 04:
And there is that specific teaching that you need to do that, that the, in Eaton, that the intermediate layer, should you choose to use one, should increase adherence of the barrier layer to the substrate.

[00:28:32] Speaker 04:
That's all I have, Your Honor, unless there are any questions.

[00:28:35] Speaker 02:
Hearing none, thank you very much.

[00:28:37] Speaker 02:
Mr. Dreier, you have some rebuttal time left.

[00:28:40] Speaker 01:
I'd like to start with the issue of what this court's construction means, because I think that's really the most dispositive issue here.

[00:28:51] Speaker 01:
Ms.

[00:28:53] Speaker 01:
Tepe pointed you to a sentence in the prior opinion in this case characterizing Raytheon Technologies' argument as saying that the bond layer merely has to have an adhesive quality.

[00:29:08] Speaker 01:
Now, I apologize if there was any confusion in the prior appeal, but if you look at the briefing in the prior appeal, from both sides, it was all about whether the bond layer has an adhesive functionality, not whether it has an adhesive property.

[00:29:29] Speaker 01:
And for example, in appendix 2136, which is from Rafeon's brief in the prior appeal,

[00:29:38] Speaker 01:
The term bond layer on its face plainly refers to a layer with bonding functionality.

[00:29:43] Speaker 01:
And that's also how GE understood it in the prior appeal.

[00:29:47] Speaker 01:
As you can see at appendix 2219, they say that the limitation that we were trying to add at the time, UTC was the pattern at the time, was an unsupported functional limitation.

[00:30:07] Speaker 01:
So this was never an argument about whether the layer had adhesive properties.

[00:30:12] Speaker 01:
It was always an argument about whether it was serving an adhesive function.

[00:30:19] Speaker 01:
And I think the second point I'd like to make is it has to be a context-specific analysis.

[00:30:25] Speaker 01:
You can't say that something has adhesive properties in one context.

[00:30:31] Speaker 01:
Therefore, it has adhesive properties in all contexts.

[00:30:35] Speaker 01:
You know, for example, water has adhesive properties in many contexts.

[00:30:40] Speaker 01:
If you get a piece of paper wet, it'll stick to things.

[00:30:43] Speaker 01:
But that doesn't mean that water will adhere to oil.

[00:30:46] Speaker 01:
And so it's simply not right to say we can throw the context out the window and just look at Tarantiva's protective layer in the context of its own embodiments and then assume that it will have the same function in the combination.

[00:31:05] Speaker 01:
And that's the point, that latter point is one that GE's expert never addressed.

[00:31:11] Speaker 01:
They had the opportunity to put in expert testimony addressing our construction and they didn't do it.

[00:31:18] Speaker 01:
And it's at bottom, it's a failure of proof that they didn't put in expert testimony addressing the specific context of adhesion in the combination that they were proposing.

[00:31:34] Speaker 01:
Finally, I'd like to say that we aren't challenging reasonable expectation of success.

[00:31:41] Speaker 01:
The board's findings on remand we disagree with, but we're not appealing that issue.

[00:31:48] Speaker 01:
But nevertheless, we have always argued that the correct interpretation of bond layer is a necessarily context-dependent analysis.

[00:32:01] Speaker 01:
And it's not satisfied merely by something having adhesive properties.

[00:32:07] Speaker 01:
So unless the court has any specific questions, then I'll rest my argument and thank the court for time.

[00:32:14] Speaker 02:
Thank you.

[00:32:14] Speaker 02:
Hearing none, we thank both sides and the case is submitted.