[00:00:00] Speaker 04:
Number 21, 2282, Sector Canada Incorporated Against No Spill, LLC.

[00:00:08] Speaker 04:
This is real.

[00:00:13] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:00:18] Speaker 01:
This is a case where the board misapplied the law of obviousness.

[00:00:22] Speaker 01:
failing to consider the prior art for all that it discloses and making findings with respect to motivation to combine and reasonable expectation of success that are not supported by substantial evidence.

[00:00:38] Speaker 03:
Ms.

[00:00:38] Speaker 03:
Israel, your problem is the two-inch limitation.

[00:00:48] Speaker 03:
Because the board found and said it was compelling evidence

[00:00:53] Speaker 03:
that the eagle arrester doesn't extend greater than 2 inches.

[00:00:57] Speaker 03:
It was 1.8 inches.

[00:00:59] Speaker 03:
How do you get around that?

[00:01:03] Speaker 01:
Thank you for that question, Your Honor.

[00:01:05] Speaker 01:
So the claim recites that the claim arrester has to extend at least 2 inches downwardly.

[00:01:16] Speaker 01:
Scepter presented evidence relying on the teachings of the Stepak I reference, specifically pointing to the Eagle Type I arrestor that also disclosed, if you look at appendix 823, that the arrested would be similar in size, the tested arrestors were similar in size to the JustRight device, which is shown to be three inches long.

[00:01:47] Speaker 01:
the board did effectively was rely on a commercial embodiment of an eagle arrester and not the specific teachings of the Stevic 1 reference.

[00:01:59] Speaker 01:
So just because there's a commercial eagle arrester that may have been 1.8 inches long does not change the fact that the Stevic 1 reference discloses that

[00:02:15] Speaker 01:
that the arresters that are shown there were similar in size to the Just Right device, which would include being three inches long.

[00:02:24] Speaker 02:
But you've got the problem of stevic two, which clarifies what stevic one does and brings us back to the 1.8 and something other than the two.

[00:02:36] Speaker 02:
And that was the problem you had, right?

[00:02:40] Speaker 02:
And that was what the board concluded was the result.

[00:02:43] Speaker 02:
And so a lot of the fight here is whether or not they should have included your, allowed your reply to come in, which purports to address that.

[00:02:52] Speaker 02:
Although I must say candidly, I don't see how it does.

[00:02:55] Speaker 02:
Right.

[00:02:56] Speaker 02:
I mean, really, I mean, truly, I mean, wasn't this just,

[00:02:59] Speaker 02:
A problem with the petition should have said the disclosure, and then it would have also been obvious to modify the 1.8 to be a little longer and give reasons for that through expert testimony, whatever.

[00:03:12] Speaker 01:
And it never did that.

[00:03:13] Speaker 02:
It didn't do that in the first instance, and it didn't do that in the reply, right?

[00:03:19] Speaker 02:
It did not.

[00:03:21] Speaker 02:
Why didn't it need to?

[00:03:23] Speaker 02:
Given what STEVIC-2 says about STEVIC-1 and how it clarifies, we're just talking about 1.8.

[00:03:31] Speaker 01:
Well, again, that's focusing on basically a commercial embodiment of the EGLE-1 product.

[00:03:38] Speaker 01:
That's not focusing on the specific disclosures of STEVIC-1.

[00:03:42] Speaker 01:
And STEVIC-1 says that the

[00:03:50] Speaker 01:
that the flame arrestors, when measured, the temperature of the flame arrestor installed at the base of the spout and similar in size to the JustRight device.

[00:04:00] Speaker 02:
That's what it refers to at the bottom of a... But it talks about a certain device with similar in size to Just... How do you pronounce it?

[00:04:10] Speaker 02:
JustRight?

[00:04:11] Speaker 02:
JustRight.

[00:04:11] Speaker 02:
They were talking about EGLE, right?

[00:04:14] Speaker 02:
I mean, we all understand and appreciate they were talking about EGLE.

[00:04:17] Speaker 01:
I believe they were talking about each of them, because it says 15 tests were conducted with flame arresters with the same age gas lantern under the same conditions.

[00:04:26] Speaker 01:
And it says that all the flame arresters had been successfully tested in gas cans.

[00:04:33] Speaker 01:
So this is not a case of anticipation.

[00:04:36] Speaker 01:
It's a case of obviousness.

[00:04:39] Speaker 02:
Well, can I take you to 314 in the appendix?

[00:04:42] Speaker 02:
Because this is really the reply that the fight is over, right?

[00:04:47] Speaker 02:
Yes.

[00:04:49] Speaker 02:
And I frankly, I mean, the two paragraphs there under 2, it seems to agree that describes that Eagle is in this.

[00:04:59] Speaker 02:
They continue to talk about Eagle.

[00:05:01] Speaker 02:
And I don't even understand the explanation here.

[00:05:04] Speaker 02:
Those two paragraphs which report

[00:05:07] Speaker 02:
to respond to the patent owner's response.

[00:05:10] Speaker 02:
I don't understand where this gets you.

[00:05:15] Speaker 02:
It says, OK, Stevic 1, including Eagle, they're similar in size.

[00:05:22] Speaker 02:
And regardless, it is undisputed that Stevic 1 and 2 taught 1.8 to 3 inches in length were both effective options.

[00:05:32] Speaker 02:
I'm not even

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I mean, even if the board had let this in, I don't know.

[00:05:36] Speaker 02:
I don't understand how this moves the needle at all in responding to the patent owner's response about stevic two.

[00:05:44] Speaker 01:
So the reply effectively was explaining the petition, the evidence in the petition, which did rely on insights to the three inches in length for a flame arrestor.

[00:06:01] Speaker 01:
saying it's similar in size to the just right device.

[00:06:05] Speaker 01:
In talking about stevic 1 and stevic 2 teaching that a flame mitigation device of 1.8 or 3 inches in length were both effective options, that's effectively saying that stevic 2 may disclose specifically that an eagle flame arrestor of 1.8 inches in length

[00:06:26] Speaker 01:
But that still doesn't detract from the specific disclosure in STEVIC-1 of a device that is similar in size to the JustRight device.

[00:06:36] Speaker 01:
Again, this is not a case of where the combination is based on a commercial eagle flame arrester.

[00:06:45] Speaker 01:
It's based on the teachings of the STEVIC-1 reference.

[00:06:50] Speaker 01:
And as shown in the petition, as shown in the SAFE declaration,

[00:06:57] Speaker 01:
Scepter was relying on teachings of a flame arrester having the properties that are recited, including the properties that are in the chart shown at 823 and a length.

[00:07:14] Speaker 01:
that was similar in size to the JustRight device, shown to be three inches.

[00:07:18] Speaker 01:
Just because a commercial embodiment of an Eagle device, as established by the SEPTAR-2, shows that something was 1.8 inches, doesn't detract from the teachings of the STEVC-1 reference, that the devices tested were similar in size to the JustRight device, having a three inches in length.

[00:07:46] Speaker 01:
Did I address your questions with respect to that?

[00:07:48] Speaker 02:
Yeah, I appreciate the effort.

[00:07:49] Speaker 02:
But can I just say, just moving on to just one other thing.

[00:07:52] Speaker 02:
I mean, the board had you reasonably in your brief treat these as three issues, but the board really combined the motivation to combine and the reasonable expectation of success.

[00:08:04] Speaker 02:
So that's an alternative holding, right?

[00:08:07] Speaker 02:
So even if we agree with everything you say about the board not being right, not being correct,

[00:08:15] Speaker 02:
in its treatment of those two issues, if we disagree with you on this first issue, it's still an affirmance, correct?

[00:08:25] Speaker 01:
We do need to address all three issues.

[00:08:29] Speaker 01:
That's correct.

[00:08:30] Speaker 03:
Does Stevik disclose only metal rather than plastic?

[00:08:38] Speaker 03:
I see both.

[00:08:42] Speaker 01:
Well, the Stevik 2 reference

[00:08:45] Speaker 01:
But step one discloses the canned material being plastic, right?

[00:08:50] Speaker 01:
Step two discloses a flame arrestor, the one that's by manufacturer D being a plastic flame arrestor.

[00:09:05] Speaker 01:
And if I may turn to, at least briefly, to the motivation to combine argument or the issue

[00:09:14] Speaker 01:
That's one where, again, the board's analysis isn't supported by substantial evidence.

[00:09:20] Speaker 01:
So SEPTAR relied on the combination of the teachings of the EGLE type 1 arrestor example in STEVIC 1 using a mesh with a mesh hole size of

[00:09:36] Speaker 01:
1.143 centimeters and combining that with teachings in stepic two of a plastic flame arrestor having a wire thickness of 0.75 millimeters.

[00:09:47] Speaker 01:
And this is where the board actually supplied its own judgment saying it wouldn't have even started with the Eagle type one arrestor, but would have started with the flame arrestor manufactured D, which in fact no spill said wouldn't even have been effective.

[00:10:06] Speaker 01:
And from there, it incorrectly concluded, without any support, that increasing wire thickness by 0.27 millimeters from the 0.48 millimeters teaching of the eagle type 1 arrestor example of step 1 to 0.75 would decrease the whole diameter of an eagle flame arrestor by that same amount.

[00:10:33] Speaker 01:
And that's not supported at all by the record.

[00:10:38] Speaker 01:
Dr. or Mr. Safai had testified that the proposed mesh would have had a hole diameter using the 0.143 centimeters of stevic 1 and but the wire thickness of 0.75 of stevic 2 but then calculated to have fewer perforations and you can see that at appendix 771 to 74.

[00:11:03] Speaker 01:
In other words, wire thickness and hole diameter are independent variables.

[00:11:08] Speaker 01:
By contrast, the record is replete with evidence that they're supporting a motivation to combine as to why plastic gas cans were desirable, why there were reasons to use plastic flame arresters instead of metal, and why there are reasons to design flame arresters with larger diameter holes.

[00:11:27] Speaker 01:
Finally, the board also erred in its reasonable expectation of success analysis requiring thresholds that

[00:11:36] Speaker 01:
are not part of the claims.

[00:11:39] Speaker 01:
The reasonable expectation of success doesn't require any specific degree of efficacy that's not specifically claimed.

[00:11:48] Speaker 01:
Here they effectively try to read in unclaimed properties of thermal conductivity and thermal inertia into the claims.

[00:11:59] Speaker 01:
And the board actually, in its motivation to combine analysis, said it would have started with a plastic flame arrestor.

[00:12:09] Speaker 01:
And thus, it was known that a plastic, supporting that it was known a plastic flame arrestor would work in the art.

[00:12:19] Speaker 01:
the board was requiring a degree of efficacy beyond what's required by the claims.

[00:12:25] Speaker 02:
Is this also the one where you make the APA argument that the analysis of the board went far beyond what the other side was arguing in it?

[00:12:35] Speaker 01:
They did both in the motivation to comply and reasonable expectation of success analysis, yes.

[00:12:41] Speaker 01:
Unless the court has further questions, I'll say the rest.

[00:12:45] Speaker 04:
Let's hear from the other side, and you'll have your rebuttal.

[00:12:48] Speaker 04:
Thank you.

[00:12:49] Speaker 04:
Mr. Evans.

[00:12:50] Speaker 00:
Thank you, Your Honors.

[00:12:51] Speaker 00:
May it please the court.

[00:12:54] Speaker 00:
The board made several factual findings that are supported by substantial evidence, and once you reach that conclusion, I believe the case can be affirmed.

[00:13:05] Speaker 00:
The board found that Scepter myopically focused on the Eagle flame arrester.

[00:13:09] Speaker 00:
When you look at the petition,

[00:13:11] Speaker 00:
They were very, very, very focused on the Eagle Flame Arrester.

[00:13:16] Speaker 00:
Now, this was a paper on a product.

[00:13:19] Speaker 00:
It was describing a product.

[00:13:20] Speaker 00:
It was not a patent application.

[00:13:21] Speaker 00:
It was trying to broadly dispose ideas.

[00:13:24] Speaker 00:
It was a paper on a particular product.

[00:13:26] Speaker 02:
So just dive in, in terms of what the board treated and what went down.

[00:13:30] Speaker 02:
So Scepter, Stevik won.

[00:13:35] Speaker 02:
They relied on the fact, assume it's Eagle.

[00:13:39] Speaker 02:
So we'll buy that.

[00:13:40] Speaker 02:
And it's 1.8 and it said substantially similar.

[00:13:45] Speaker 02:
And then what's stepic two comes in and says the Eagle is only 1.8.

[00:13:51] Speaker 02:
So what's the argument that it is substantially similar was the wrong standard or shouldn't be relied on, or it doesn't get you to two.

[00:14:00] Speaker 00:
Well, the claim language is at least two.

[00:14:03] Speaker 00:
And so if you tried to read that claim from an infringement perspective on a product that was less than two, you would lose.

[00:14:08] Speaker 00:
Same applies to the prior art.

[00:14:11] Speaker 00:
And in this case, when you look at the actual Stavik 1, it doesn't say anything about eagle.

[00:14:19] Speaker 00:
It says, when measured, the temperature of the flame arrester, there's just one flame arrester in that, installed at the base of the spout, and similar in size to the JustRight device, was always found to be elevated near 200 degrees.

[00:14:32] Speaker 02:
Well, similar in size to JustRight is three, right?

[00:14:35] Speaker 00:
Correct.

[00:14:36] Speaker 00:
But when it says similar in size to Just Right, it's referring to Table 1 that lists a Just Right, an Eagle, and a Blitz flame arrestor.

[00:14:45] Speaker 00:
I don't believe they're using any one of those three flame arrestors.

[00:14:48] Speaker 00:
If they had been, they would have said the size of Just Right.

[00:14:53] Speaker 00:
Instead, they said similar in size to Just Right.

[00:14:56] Speaker 00:
Well, if they were using Just Right, they would have said the Just Right flame arrestor.

[00:15:01] Speaker 02:
Wasn't the board really focused on EGLE?

[00:15:04] Speaker 02:
The board was using EGLE.

[00:15:05] Speaker 00:
The board used EGLE for everything because the petition used EGLE for everything and they don't get to move beyond EGLE.

[00:15:11] Speaker 02:
Okay, let me try to understand what was missing here in the petition the board thought was missing because the reply, I'm just having a hard time understanding what

[00:15:20] Speaker 02:
You know, the board wouldn't accept it.

[00:15:22] Speaker 02:
But even if the board had accepted it, I'm not understanding what, in addition to the petition, it would have added.

[00:15:28] Speaker 00:
What was missing is that the petition said, if you make eagle out of plastic, you're done.

[00:15:35] Speaker 00:
And if eagle is only 1.8 inches, you're not done, because you're still too short.

[00:15:39] Speaker 02:
So the petition, at least one example of what the petition could have or should have said was, and even though eagle is 1.8,

[00:15:51] Speaker 02:
it would have been obvious to one skilled in the art for it to move up to 2.8.

[00:15:58] Speaker 02:
And they could have supplemented that.

[00:15:59] Speaker 00:
They would have to have an additional argument for why it would be obvious to make a modification to its length, which is nowhere in the petition.

[00:16:06] Speaker 00:
Separately, as Dr. Roby explained, that flange around the top isn't part of the flame arrestor from the perspective of perforations and things.

[00:16:15] Speaker 00:
So the question is, does that even count?

[00:16:16] Speaker 00:
So it might only be an inch and a half tall.

[00:16:19] Speaker 00:
Without an explanation, without a motivation argument, without something to explain why a person would make it longer, it literally comes up short.

[00:16:28] Speaker 02:
And they had to have in the petition captured that is at least an alternative.

[00:16:31] Speaker 00:
Yes, they had to make that argument.

[00:16:33] Speaker 00:
They don't get to add new arguments to the petition.

[00:16:35] Speaker 00:
That's part of the deal the AIA set up.

[00:16:37] Speaker 00:
When you file your petition, you have to put all your arguments in it and then we get to shoot them.

[00:16:40] Speaker 02:
What are your cases?

[00:16:42] Speaker 02:
Do you have any cases?

[00:16:44] Speaker 02:
Because this rings a bell to me.

[00:16:46] Speaker 02:
about the petition not having included that extra.

[00:16:50] Speaker 02:
But even if it doesn't read on this, it would have been obvious to make the modification.

[00:16:57] Speaker 02:
Did you cite any cases on that?

[00:17:01] Speaker 02:
We cited a case in our brief.

[00:17:04] Speaker 00:
I apologize.

[00:17:05] Speaker 00:
I don't have that case.

[00:17:06] Speaker 02:
Because it doesn't seem.

[00:17:08] Speaker 02:
If we were operating on a clean slate, it wouldn't seem crazy to me to allow the petitioner after you hear it, if the patent owner comes in and says, no, you're wrong, x, y, and z, for the petitioner to come in and say, well, based on this new argument, even if they're right, it would have been obvious to try to do something different.

[00:17:29] Speaker 02:
But I think there are cases that say you can't do that.

[00:17:32] Speaker 00:
You can't do that, yes.

[00:17:33] Speaker 00:
And plus, what they told the board

[00:17:36] Speaker 00:
is they submitted their own declaration, their own expert, Mr. Safai, and they said STAVIC-1 was just preliminary results, and that a PASIDA would look to STAVIC-2 for additional teachings and supplementation.

[00:17:48] Speaker 00:
So it's not even a situation where we're just saying, when you look at the two something, we're saying their own expert said, look at STAVIC-2 to figure out STAVIC-1.

[00:17:58] Speaker 00:
And so that's the only evidence there is.

[00:18:01] Speaker 00:
And so when the board reached that conclusion based on

[00:18:05] Speaker 00:
their experts position it's it's well rounded or well-founded actually this is this is true

[00:18:12] Speaker 04:
I don't know if it would change the result in this case or not, but the statute doesn't require that all of the arguments be presented and they can never be supplemented.

[00:18:27] Speaker 04:
We do have some cases which have felt that there's been a certain inequity if it doesn't work that way, but it's not part of the basic principle of this proceeding, which is that all of the information

[00:18:42] Speaker 04:
will be brought out.

[00:18:44] Speaker 04:
Would it make any difference in this case, if all of the information had been allowed to be brought out?

[00:18:52] Speaker 00:
I don't believe it would make a difference at all because of the motivation to combine and the likelihood of success.

[00:18:58] Speaker 00:
But I would point out that we pointed it out in our Patent Owner Response.

[00:19:03] Speaker 00:
And instead of them acknowledging that, yeah, you got us on that one, here's the motivation to make it longer, they didn't do that.

[00:19:10] Speaker 00:
So if the rule was, if someone brings up an issue,

[00:19:13] Speaker 00:
you get to fix it, they didn't even try to fix it.

[00:19:16] Speaker 00:
They left it broken.

[00:19:18] Speaker 00:
And when you leave it broken without any argument for why someone would make it longer, I believe you're stuck with that.

[00:19:23] Speaker 02:
But that's not the... Well, firstly, you threw in motivation and reasonable expectation of success.

[00:19:28] Speaker 02:
So assume for a second that we're not buying what the board did in that regard.

[00:19:32] Speaker 02:
So why, and you're responding to what Judge Newman said,

[00:19:37] Speaker 02:
then the board rejected the reply as improper.

[00:19:41] Speaker 02:
What you're suggesting is they didn't do enough in the reply.

[00:19:45] Speaker 02:
That means the board should have accepted, not that the board should have accepted the reply, and then they could have rejected it on its merits.

[00:19:52] Speaker 02:
But in this case, the board rejected even looking at the reply, right?

[00:19:56] Speaker 00:
Well, the reply argument was the Stavik 1 said 3, Stavik 2 says 1.8.

[00:20:04] Speaker 00:
Either one would be good.

[00:20:06] Speaker 00:
The reply never said, and here's why a person would be motivated to make it longer than 1.8.

[00:20:11] Speaker 00:
That's the missing argument that they never put in the petition that had to be in the petition, and that the fix they never attempted.

[00:20:18] Speaker 02:
That's not what the board relied on.

[00:20:19] Speaker 00:
Well, what the board said is, it's a new argument, so we're not going to let you make it.

[00:20:25] Speaker 02:
But you're conceding here.

[00:20:27] Speaker 02:
You're saying it wasn't a new argument.

[00:20:28] Speaker 02:
It was just an insufficient argument because they never, in the petition or in the reply, dealt with

[00:20:36] Speaker 02:
put forth an argument that even if it's 1.8, one would have motivated to go longer.

[00:20:41] Speaker 00:
With all due respect, it's a new argument because there's never been an argument in any other papers that a person of skill in the art would be motivated to take a 1.8 inch flame arrestor and make it longer for any reason.

[00:20:56] Speaker 00:
They never made that argument, so it's a new one.

[00:20:57] Speaker 02:
They never made it in the reply.

[00:20:58] Speaker 02:
So why did the board reject the reply if the reply in your view was just nothing new and nothing different than the petition?

[00:21:05] Speaker 00:
It could have.

[00:21:05] Speaker 02:
Why did the board reject it?

[00:21:07] Speaker 00:
It could have.

[00:21:10] Speaker 00:
I'd like to hit a couple points.

[00:21:11] Speaker 00:
It could have what?

[00:21:12] Speaker 00:
It could have accepted.

[00:21:12] Speaker 00:
It could have accepted the argument and rejected it.

[00:21:15] Speaker 00:
Either one would have gotten you the same place.

[00:21:18] Speaker 00:
I'd like to hit a couple points quickly on thermal conductivity and thermal inertia.

[00:21:21] Speaker 00:
The board found that a person of skill in the art would look at these characteristics of a flame arrester when designing it, that metal and plastic were substantially different in their ability to conduct and absorb heat.

[00:21:34] Speaker 00:
And so what you have here is a flame arrester eagle.

[00:21:37] Speaker 00:
It has a critical velocity, which means it can only stop flames up to a flame speed of 0.503 meters per second.

[00:21:44] Speaker 00:
When the evidence was the minimum speed is 0.4 meters a second, their expert testified that that's where it starts.

[00:21:50] Speaker 00:
Then like dominoes, it gets faster.

[00:21:52] Speaker 00:
Our expert testified, yeah, it does get faster, up to 1.6 to 2.2, I believe, meters per second.

[00:22:01] Speaker 00:
And as a result, you have a metal device that absorbs and retains and conducts heat well.

[00:22:10] Speaker 00:
They tell you, oh, you would just switch it to plastic and expect it to work, even though the metal is operating right at the minimum threshold to be characterized as a flame arrester.

[00:22:19] Speaker 00:
you're going to not switch to plastic, which is an insulator.

[00:22:22] Speaker 00:
It's not going to absorb heat well.

[00:22:23] Speaker 00:
The testimony the board found, supported by Dr. Roby's declaration, is that the plastic is anywhere from 37 to 1,950 times better at conducting heat than plastic.

[00:22:43] Speaker 00:
And on the thermal inertia side, metal is 1,000 times better at absorbing heat than plastic.

[00:22:49] Speaker 00:
And so you have something that's very suited to this environment.

[00:22:52] Speaker 00:
Flame arresters are classically metal, and they're going to switch out a flame arrestor operating right at the threshold of safety with plastic and never ask, will this work?

[00:23:02] Speaker 00:
Pinto and Ford tried that.

[00:23:04] Speaker 00:
It didn't come out so well.

[00:23:06] Speaker 00:
The idea that you can save a little money and don't look.

[00:23:09] Speaker 00:
In this case, the other problem is the

[00:23:13] Speaker 00:
The Stevic references were all about the Grasso equations, which said you check hole size and you check critical velocity.

[00:23:21] Speaker 00:
Once you start altering the hole size, one of the variables for calculating critical velocity is the percent of open area.

[00:23:29] Speaker 00:
And they never calculated it.

[00:23:32] Speaker 00:
So with their new design, whether you add more holes, I'm sorry, whether you add fewer holes with thicker wires or leave the wires the same and have fewer holes,

[00:23:42] Speaker 00:
No matter what you do with the modification, it's going to change that fractional free area variable and the critical velocity.

[00:23:48] Speaker 00:
And when you're operating right at that point, a person of skill in the art, the board found, would have cared about that.

[00:23:54] Speaker 00:
A person of skill in the art would have said, what's going to be the critical velocity of a new flame arrester?

[00:23:59] Speaker 00:
Because it has to be able to stop, 0.503 at least.

[00:24:04] Speaker 00:
But you just remove the ability to conduct and absorb heat and set it in this paper.

[00:24:11] Speaker 00:
says that, you know, references the fact that that is what a flame arrester does.

[00:24:18] Speaker 00:
And the board picked up on it.

[00:24:20] Speaker 00:
And we pointed it out.

[00:24:21] Speaker 00:
And Dr. Roby gave extensive testimony about it, that a flame arrester works.

[00:24:26] Speaker 00:
I'm quoting now from Pennix at 822.

[00:24:28] Speaker 00:
A flame arrester works by removing heat from a flame and keeping the temperature of the fuel on the ignition on the other side of the arrester below its ignition point.

[00:24:37] Speaker 00:
And as the board found in its decision,

[00:24:40] Speaker 00:
And as Dr. Roby explained extensively in his records, that removing heat is about conductivity, and keeping the temperature below the ignition point is about thermal inertia.

[00:24:51] Speaker 00:
And so right here in the static paper, it says you need to worry about these things.

[00:24:54] Speaker 00:
Dr. Roby explained.

[00:24:55] Speaker 02:
But it seems like the problem with this argument is that the claims don't require any particular level of thermal inertia or any satisfaction of the Gossel equations.

[00:25:07] Speaker 00:
The question though is, is what would a person still near do when they, when they saw these two references and thought to combine them.

[00:25:15] Speaker 00:
They want to just combine them and say, we're done.

[00:25:18] Speaker 00:
They would say, I'm looking at a plastic thermal insulator.

[00:25:22] Speaker 00:
I'm looking at a metal, highly conductive, highly inertial device.

[00:25:28] Speaker 00:
They're not just going to blindly change one out for the other.

[00:25:31] Speaker 00:
And the board's so found as a matter of fact, the board found as a matter of fact, those were

[00:25:35] Speaker 00:
Considerations.

[00:25:36] Speaker 00:
Those weren't claim elements.

[00:25:37] Speaker 00:
Those were considerations for the motivation to combine and for the likelihood of success.

[00:25:42] Speaker 00:
And they never showed that their combination would succeed.

[00:25:46] Speaker 00:
There's no evidence that we could succeed.

[00:25:47] Speaker 00:
They just said, mechanically, we're going to throw things together until they fit, and we're not going to ask if they work.

[00:25:52] Speaker 00:
And the board found that persons of ordinary skill and the art don't conduct themselves that way, that they would ask themselves, will this work?

[00:25:59] Speaker 00:
Not just is it dimensionally aligned, but is it functionally going to work?

[00:26:03] Speaker 00:
Because after all, it has to be a flame arrester, not just a kid's toy.

[00:26:06] Speaker 00:
It has to do something.

[00:26:09] Speaker 00:
And that's why they'd ask these questions through Grosse.

[00:26:13] Speaker 00:
And Stefik taught, Grosse is how you judge those two basic aspects of whether or not it's a flame arrester.

[00:26:18] Speaker 00:
And Grosse said, if you're not above point four, it's not an effective flame arrester.

[00:26:23] Speaker 00:
So the very teachings of the art are telling you, look at these equations when you're thinking about making a flame arrester, and see that it works before you call it a flame arrester.

[00:26:36] Speaker 00:
And again, those are considerations for the motivation combined with the success.

[00:26:40] Speaker 00:
Those are not claim elements.

[00:26:41] Speaker 00:
And we did cite cases on that for where you get to look beyond the claim language when the references bring up other issues.

[00:26:50] Speaker 00:
That was Cook, and that was Arki, who was another one that reached that conclusion.

[00:26:57] Speaker 00:
And here, where the board has made findings of facts supported by substantial evidence in the manner of the opinion of a guy who's been in the combustion engineering business for 30 years, has a PhD in mechanical engineering, I believe, from Stanford, very sharp guy, he's saying that's how people think.

[00:27:14] Speaker 00:
The board found that's how people think.

[00:27:15] Speaker 00:
Those are fact findings.

[00:27:17] Speaker 00:
And in the case of

[00:27:23] Speaker 00:
Car Farma versus TWI, the presence or absence of motivation to combine reasonable expectation success are pure questions of fact.

[00:27:32] Speaker 00:
And in the Cree case, if two inconsistent conclusions may reasonably be drawn from the evidence in the record, then the PTEP's decision in favor of one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.

[00:27:49] Speaker 00:
So you have to sustain it if it's been fully litigated

[00:27:52] Speaker 00:
And it's a question of fact.

[00:27:53] Speaker 00:
And that's certainly true here, where the record is hundreds of pages.

[00:27:58] Speaker 00:
And these issues were litigated extensively before the board.

[00:28:02] Speaker 00:
Lastly, I'd just like to say, they said in their reply brief at page 12.

[00:28:06] Speaker 04:
Now you're short of time.

[00:28:07] Speaker 04:
One last word.

[00:28:09] Speaker 00:
OK.

[00:28:09] Speaker 00:
I would just say that the rest of it, Mr. Staff, I didn't know anything about the shape, size,

[00:28:14] Speaker 00:
calculated hole sizes of the eagle flame arrestor.

[00:28:17] Speaker 00:
He didn't know anything about the plastic flame arrestor he was combining, and yet he takes two things he doesn't understand, puts them together, and says, voila, I've got your claim.

[00:28:25] Speaker 00:
We submit that's not correct.

[00:28:26] Speaker 00:
Thank you all very much.

[00:28:28] Speaker 04:
Thank you, Mr. Evans.

[00:28:33] Speaker 01:
Ms.

[00:28:33] Speaker 01:
Israel?

[00:28:34] Speaker 01:
First, I'll refer the court to the Appendix 2037.

[00:28:41] Speaker 01:
which is the declaration that was in support of the petitioner's reply.

[00:28:46] Speaker 01:
And there, that's where Mr. Safai specifically said that Dr. Roby had ignored the teachings of STEVIC 1, and although a flame arrestor of 1.5 inches long is an obvious design option, STEVIC expressly taught that a flame arrestor that is three inches long works.

[00:29:11] Speaker 01:
This is an issue, again, where we're not relying on the commercial embodiment of an eagle, physical eagle flame arrestor, but the full teachings of what's in step with one.

[00:29:25] Speaker 01:
And you can't ignore that it describes flame arrestors similar in size to the just right device of three inches.

[00:29:32] Speaker 01:
It's not a case of anticipation, it's a case of obviousness.

[00:29:40] Speaker 01:
With respect to

[00:29:42] Speaker 01:
A specific one suggests that an arrestor of three inches in length, it suggests having the mesh characteristics for the ABLE-1 flame arrestor.

[00:29:56] Speaker 01:
With respect to the properties of the combination, whether there would have been a reasonable expectation of success, as my friend on the other side just talked about, he referenced properties of thermal conductivity and thermal inertia.

[00:30:16] Speaker 01:
There were no findings by the board on these issues, and those are properties that are not claimed.

[00:30:26] Speaker 01:
as shown in our opening brief, Inceptor's opening brief at pages 44 and 45, the actual gross cell equations, or gross cell equations, there was a typographical error somewhere along the way, were satisfied by the combination.

[00:30:44] Speaker 01:
So there shouldn't be any question about that.

[00:30:49] Speaker 01:
Because the board, again, erred in failing to consider

[00:30:55] Speaker 01:
the full teachings of the prior art, the full teachings of the Stevic I reference because it made its findings on motivation to combine and on reasonable expectation of success are not supported by substantial evidence, are not supported by the record.

[00:31:14] Speaker 01:
This court should reverse with respect to claim one and remand for further proceedings.

[00:31:20] Speaker 01:
Unless the court has any further questions, I will

[00:31:26] Speaker 01:
I will conclude.

[00:31:27] Speaker 01:
Thank you both.

[00:31:28] Speaker 04:
The case is taken under submission.