[00:00:00] Speaker 02:
Our next case is Sig Sauer, Inc.

[00:00:02] Speaker 02:
versus NST Global LLC.

[00:00:10] Speaker 02:
Mr. Caviar, did I pronounce it correctly?

[00:00:14] Speaker 02:
Caviar.

[00:00:15] Speaker 02:
OK.

[00:00:15] Speaker 02:
I didn't want to go there, but yeah.

[00:00:20] Speaker 02:
Mr. Caviar, let's see.

[00:00:22] Speaker 02:
You have reserved financial rebuttal, correct?

[00:00:26] Speaker ?:
Yes, correct.

[00:00:28] Speaker 02:
And Counselor Maxie Fisher, you have reserved three minutes for rebuttal to six hours new presentation.

[00:00:38] Speaker 02:
You'll have a cross appeal here, correct?

[00:00:40] Speaker 02:
Yes, Your Honor.

[00:00:43] Speaker 02:
OK.

[00:00:43] Speaker 02:
All right.

[00:00:43] Speaker 02:
Well, let's just continue on.

[00:00:47] Speaker 02:
You may proceed.

[00:00:49] Speaker 01:
Thank you for hearing this case, and may it please the court.

[00:00:52] Speaker 01:
Sixth Hour is appealing the construction and application of two claimed terms that each show up in the two below IPR proceedings.

[00:01:02] Speaker 01:
Those terms are elastomeric material and buffer tube.

[00:01:06] Speaker 01:
Now, these terms relate to components of an accessory for a firearm, namely a forearm stabilizing attachment that can be used to assist someone to shoot single-handedly, especially in conditions where the gun might otherwise be one that needs two hands to aim, even if it's a handgun.

[00:01:23] Speaker 01:
Now, with respect to elastomeric material, and to some extent also with the buffer tube limitation, it seems as if the board almost went backwards in the order of evidence, and started almost with the extrinsic evidence, and then worked backwards.

[00:01:40] Speaker 02:
Here for buffer tube, excuse me.

[00:01:43] Speaker 02:
So a very basic question here is, what is elastometric?

[00:01:48] Speaker 02:
Is that an adjective, or is that a noun?

[00:01:50] Speaker 01:
Elastomeric is an adjective.

[00:01:53] Speaker 02:
And it's defined as describing a class of materials that have certain characteristics.

[00:01:58] Speaker 01:
So it's sort of like elastic is used to describe natural rubber.

[00:02:03] Speaker 01:
And elastomeric is used to describe elastomers.

[00:02:06] Speaker 01:
So it has a similar sort of implication.

[00:02:11] Speaker 01:
And it implies the sort of resilience, as well as the ability to take stress and return to a pretty rigid shape as well.

[00:02:22] Speaker 04:
My understanding is that the interpretation you want for elastomeric material is basically a material that is resilient, has resilient properties.

[00:02:35] Speaker 01:
Based on the disclosure and the specification, that seems to be how they consider the term elastomeric material.

[00:02:42] Speaker 01:
And so that's, yes, we want to be consistent with those disclosures.

[00:02:46] Speaker 04:
OK.

[00:02:47] Speaker 04:
But what do we do with the prosecution history when it originally described these materials as made of resilient material?

[00:02:55] Speaker 04:
and then those claims, those application claims got rejected over the prior art and then to overcome the prior art rejection they deleted the term resilient material and replaced it with elastomeric material and then explained how the prior art references

[00:03:14] Speaker 04:
arguably resilient, but they're not elastomeric, and then the claims were allowed.

[00:03:17] Speaker 04:
And so therefore, we're kind of compelled, we're channeled by that prosecution history into a conclusion that whatever elastomeric material is, it cannot be resilient material.

[00:03:29] Speaker 04:
It's not the same thing.

[00:03:32] Speaker 01:
I don't believe that's an argument that was raised

[00:03:35] Speaker 01:
opposing counsel.

[00:03:37] Speaker 01:
And frankly, I'd like to take a moment and maybe answer it when I come back from my second set, because I have not considered that in detail, Your Honor.

[00:03:46] Speaker 01:
I would say, however, that the specification is filled with references to resilience and equating that to elastomeric.

[00:03:57] Speaker 01:
And also, there are interchangeable uses of the term rigid with non-elastomeric.

[00:04:04] Speaker 01:
The problem about how this construction played out was, with Forgeau, the board didn't think it disclosed an elastomeric material because it was made of metal, preferably made of metal.

[00:04:19] Speaker 01:
And they also took an analysis of the flexibility of it, and they thought it was kind of thick.

[00:04:23] Speaker 01:
But when they looked at Morgan, they distinguished Morgan entirely on being rigid.

[00:04:31] Speaker 01:
And so there wasn't the same thought of, well, what about the quality here?

[00:04:35] Speaker 01:
I mean, we're talking about a rigid material, but it's clearly a plastic-type material and should suggest to a person of ordinary skill that similar types of material would be available.

[00:04:45] Speaker 01:
And in fact, that's part of the explanations that were ignored by the board a bit later on in terms of the motivation to combine forging with Morgan.

[00:04:55] Speaker 04:
I guess my understanding of the board's

[00:04:59] Speaker 04:
reasoning was that the combination that you were proposing, whatever resulting combination of Forgeau with Morgan, would create an attachment where the flaps had some elasticity to it.

[00:05:17] Speaker 04:
And the board concluded, well, that is not the right understanding of elastomeric material.

[00:05:23] Speaker 04:
And so whatever obvious thing that you've created, it's not

[00:05:28] Speaker 04:
it's not mapped onto the claimed invention, which, because the elastomeric material is not something that merely has some degree of elasticity, it is something else.

[00:05:43] Speaker 04:
Because elasticity and resilience, I mean, we're going back to my earlier point about the prosecution history, where the claims

[00:05:53] Speaker 04:
The applicant renounced a claim scope that's broad enough that it's just material that is resilient.

[00:06:00] Speaker 01:
If I'm understanding your honest question correctly,

[00:06:06] Speaker 04:
that there's a distinction between elasticity and elastomeric.

[00:06:10] Speaker 04:
I understand these words sound the same, and it's a subtle difference, but it's a very important difference for purposes of this claimed invention, especially given the prosecution history.

[00:06:21] Speaker 04:
And I could have swore the board would

[00:06:28] Speaker 04:
But can you speak to that?

[00:06:31] Speaker 04:
The board identifies distinction between these two things.

[00:06:35] Speaker 04:
And it's too loose to create a combination with materials that have some elasticity and say that that's something made of elastomeric material.

[00:06:47] Speaker 01:
Well, one of the problems here is that in the board's decision, as I understood it,

[00:06:55] Speaker 01:
The primary basis they had for relying on that distinction between elastic and elastomeric was the testimony of Dr. Harrison.

[00:07:03] Speaker 01:
And so that to us was insufficient to support changing the meaning of it as evident in the specification.

[00:07:12] Speaker 01:
And I will review very quickly over the time my counsel is just speaking to answer the other questions regarding the prosecution history.

[00:07:21] Speaker 01:
But I presume there's a similar.

[00:07:22] Speaker 04:
Yeah.

[00:07:25] Speaker 04:
I would point you and your co-counsel to A20 of the board decision bond paragraph.

[00:07:33] Speaker 01:
Your Honor, thank you.

[00:07:36] Speaker 01:
It is coming back to me a little bit.

[00:07:38] Speaker 01:
Even if the construction of Elastomeric was both the material and the quality, then that's the wrong result here as well, because applying that definition, it was inconsistently applied.

[00:07:51] Speaker 01:
So even if that's the correct interpretation, the board didn't provide one that included both concepts of ability and of the material.

[00:08:01] Speaker 01:
So another problem.

[00:08:03] Speaker 01:
with the analysis on elastomeric material is that the board specifically identified a single motivation to combine Morgan and Borgia.

[00:08:15] Speaker 01:
And in doing so, excluded a number of other pieces of both testimony and evidence presented by Six Hour on other ways and reasons for combining.

[00:08:30] Speaker 01:
And it's in the briefing, but I could read some out.

[00:08:36] Speaker 01:
Basically, Mr. Nixon testified that the use of elastomeric materials was very well known, that metal in particular are known to be elastomeric.

[00:08:45] Speaker 01:
that there's, in fact, an elasticity test, standardized test, for metals.

[00:08:50] Speaker 01:
And that using these in the Dois de Forgeau is just a substitution of one element for another to yield a particular result.

[00:08:58] Speaker 01:
And it could have been motivated by cost, availability of materials, ease of manufacture, user comfort.

[00:09:04] Speaker 04:
When I looked at Mr. Nixon's testimony on the record about elastomeric materials, it seemed pretty clear to me that

[00:09:12] Speaker 04:
His commentary about elastomeric materials was premised on understanding elastomeric materials to be merely materials with some elasticity.

[00:09:24] Speaker 04:
Is that a fair understanding of Mr. Nixon's testimony?

[00:09:28] Speaker 04:
I think that's the way the board understood Mr. Nixon's testimony.

[00:09:31] Speaker 04:
And then, therefore, if that turns out to be an incorrect understanding of elastomeric material, then there's

[00:09:39] Speaker 04:
there's a flaw in the model, the obviousness model that Mr. Nixon is proposing.

[00:09:46] Speaker 04:
Sure.

[00:09:46] Speaker 01:
And I understand that point, Your Honor.

[00:09:48] Speaker 01:
Again, I guess I would return to the fact that even if that's the case and Mr. Nixon missed part of this equation and he focused entirely on the elasticity or the flexibility or resilience and not on the actual polymer material, I don't think that changes the outcome here because it was still inconsistently applied.

[00:10:10] Speaker 01:
And the board's construction doesn't exactly say that, right?

[00:10:13] Speaker 01:
I mean, the board's construction says elastomeric material equals an elastomer.

[00:10:17] Speaker 01:
And they went pretty.

[00:10:18] Speaker 02:
I thought one of your strong arguments was that there's an error in the construction involving elastomer.

[00:10:27] Speaker 02:
And you seem to be talking your way out of this.

[00:10:30] Speaker 02:
I mean, is there an error in the construction or not?

[00:10:33] Speaker 01:
I'm sorry?

[00:10:34] Speaker 02:
Is there an error in the construction or not?

[00:10:36] Speaker 01:
Yes, Your Honor, there is.

[00:10:38] Speaker 02:
Well, tell us why.

[00:10:41] Speaker 01:
At the very least, elastomeric material needs to refer to the quality of an elastomer.

[00:10:47] Speaker 01:
And those qualities include?

[00:10:49] Speaker 02:
And did you provide evidence in that regard?

[00:10:52] Speaker 01:
Yes.

[00:10:54] Speaker 01:
In fact, the specification talks about the quality and ability of elastomeric materials on its A157 in columns 3, 40 to 43.

[00:11:05] Speaker 01:
In appendix a 148 column 3 33 to 35 then there's a fair amount of interchangeable use between the term last American semi-rigid and That also supports that those are important concepts that they're linked and they're part parcel of one another and

[00:11:24] Speaker 01:
And similarly, the board also did a kind of, excuse me, the also had an interchangeable use of the words rigid and not alastomeric.

[00:11:33] Speaker 02:
So I think another point that in the claim construction that the board said that they didn't adopt your version, it's because of the, you were relying on dictionaries that were not within the field of art, correct?

[00:11:50] Speaker 01:
They didn't rely on the dictionary, I think, because it was late produced, but they may have also mentioned that.

[00:11:55] Speaker 02:
No, the dictionary that you produced.

[00:11:57] Speaker 01:
Yes, yes, late produced by us, correct.

[00:12:00] Speaker 02:
Can you say something about that?

[00:12:02] Speaker 01:
I mean, we were responding to arguments that were being made.

[00:12:07] Speaker 01:
And we're not standing on the need to introduce that piece of evidence.

[00:12:12] Speaker 01:
And we're not basing our construction entirely on that dictionary definition.

[00:12:16] Speaker 01:
For us, it really comes down to what is in the specification and what is being described as the type of material that needs to be used in this type of article.

[00:12:31] Speaker 01:
So in addition to misunderstanding that there were other motivations to combine, I believe that the board also presumed that Trotsky was almost the entire basis for Nixon's statements on how plastics with elasticity are elastomeric materials.

[00:12:50] Speaker 01:
I don't know if Nixon ever went as

[00:12:54] Speaker 01:
broad as Judge Shen suggested, because there are statements where Nixon tries to talk about it more in terms of plastics.

[00:13:01] Speaker 01:
But I don't think it really matters for the outcome here because of these kind of missing elements in the analysis.

[00:13:08] Speaker 02:
You are in your rebuttal time.

[00:13:10] Speaker 02:
Oh, I would like to.

[00:13:11] Speaker 02:
Thank you.

[00:13:18] Speaker 02:
Councillor Fisher.

[00:13:27] Speaker 02:
So you've divided your time into, you're going to now address for 12 minutes, and then you have three minutes for rebuttal.

[00:13:36] Speaker 00:
I'm sorry, Your Honor.

[00:13:37] Speaker 02:
OK.

[00:13:38] Speaker 02:
You have divided your 15 minutes into 12 and three minutes.

[00:13:41] Speaker 02:
Three minutes is for rebuttal, correct?

[00:13:43] Speaker 00:
Yes, Your Honor.

[00:13:44] Speaker 02:
OK.

[00:13:45] Speaker 00:
Good morning, Your Honors.

[00:13:46] Speaker 00:
May it please the court.

[00:13:47] Speaker 00:
My name is Brittany Maxey Fisher, and I'm here with my colleague Stacey Tramell on behalf of NST Global Patent Owner.

[00:13:55] Speaker 00:
And we believe that the board construed the terms elastomeric material and buffer tube correctly.

[00:14:01] Speaker 00:
The board walked through the correct analysis, beginning with the intrinsic evidence.

[00:14:08] Speaker 02:
So let me start by asking you the same question I asked your friend.

[00:14:12] Speaker 02:
Is elastomer, is that an adjective or is that an noun?

[00:14:16] Speaker 00:
So elastomeric material is a type of material.

[00:14:20] Speaker 00:
And so elastomeric is defining the type of material.

[00:14:26] Speaker 02:
There is no one type of material that's elastomer, right?

[00:14:30] Speaker 00:
Elastomer is a material that has a rubber-like polymer.

[00:14:34] Speaker 02:
So elastomer describes types of materials.

[00:14:38] Speaker 00:
Yes, Your Honor.

[00:14:39] Speaker 02:
So that would make it an adjective.

[00:14:43] Speaker 00:
Elastomeric material?

[00:14:44] Speaker 00:
Yes, Your Honor.

[00:14:45] Speaker 04:
OK.

[00:14:45] Speaker 04:
So elastomeric material is referencing a class of materials?

[00:14:53] Speaker 00:
Elastomeric material references the flaps, if we look at- Yes, in the claim.

[00:14:58] Speaker 04:
But I'm just saying ordinarily out in industry, trying to understand what this is.

[00:15:06] Speaker 04:
Is that recognized, understood, classic materials?

[00:15:11] Speaker 04:
You said something like rubber-like polymer.

[00:15:13] Speaker 00:
Yes.

[00:15:14] Speaker 04:
And so what I'm trying to figure out is, are there chemists or somebody out there that say, when they use the term elastomeric material, they're necessarily referring to, OK, we're talking about a class of polymers out there, and it's a rubber-like type of polymer.

[00:15:31] Speaker 00:
Yes, Your Honor, that is correct.

[00:15:34] Speaker 00:
The board also in the extrinsic evidence looked to a chemical definition that stated elastomer is a polymer with properties similar to natural rubber.

[00:15:44] Speaker 00:
And the board relied upon that extrinsic evidence, as well as, as your honor stated, the narrowing of the claim from resilient material to elastomeric material in order to overcome the prior art.

[00:16:00] Speaker 00:
Owen was a rigid ski pole.

[00:16:03] Speaker 00:
And in order to overcome that, we went from resilient material to elastomeric material.

[00:16:08] Speaker 00:
A ski pole?

[00:16:13] Speaker 04:
A ski pole is resilient material?

[00:16:17] Speaker 00:
Everything can be resilient to an extent.

[00:16:20] Speaker 00:
And so this was a rigid ski pole, but it still has some sort of resiliency.

[00:16:25] Speaker 00:
So we went to elastomeric materials.

[00:16:28] Speaker 04:
When you watch Olympic skiing, the ski poles tend to bend at times.

[00:16:34] Speaker 00:
So we believe that the board correctly, they performed the correct analysis, and we believe that elastomeric material and buffer tube were both applied correctly.

[00:16:43] Speaker 00:
Where we believe that the board erred is in the board's surprise preamble claim limitations in its final written decision.

[00:16:55] Speaker 02:
This is your cross-appeal?

[00:16:56] Speaker 00:
Yes, unless there's any other questions.

[00:17:00] Speaker 04:
On the cross appeal, the other side points out that there were actually two separate identified reasons for finding the secondary consideration evidence to be unpersuasive.

[00:17:14] Speaker 04:
Number one was this nexus question of the relation given the way they construed the preamble.

[00:17:21] Speaker 04:
In a way that as you say But the second and separate ground was that when they reviewed the submitted evidence it was quite clear to the board that the reason why people were buying your commercial product was

[00:17:40] Speaker 04:
So because it permitted shouldering.

[00:17:43] Speaker 04:
And obviously, that's not a permissible way of using this kind of attachment.

[00:17:49] Speaker 04:
And it had nothing to do with any novel features of your patented attachment.

[00:17:57] Speaker 04:
And so for that reason, the commercial success doesn't actually relate to the claimed invention.

[00:18:06] Speaker 04:
Can you respond to that?

[00:18:08] Speaker 00:
Yes, Your Honor.

[00:18:10] Speaker 00:
In the final rent decision, the board stated that the secondary considerations were not met because patent owner had not produced evidence of the forearm stabilizing attachment and the handgun and the support structure.

[00:18:26] Speaker 00:
And yes, you can look at a specific feature of the claimed invention in order to provide secondary considerations, but you also have the opportunity to look at the invention as a whole

[00:18:38] Speaker 00:
And had Pat Nowner knew that the board was going to raise this preamble claim limitation, Pat Nowner would have submitted evidence of the stabilizing attachment and the handgun for sales and evidence and arguments and the handgun and the support structure.

[00:18:57] Speaker 04:
How does that get over the fact, though, that all of the statements that were submitted touting the attachment were devoted to the idea that, hey, now we can shoulder these hand pistols, and isn't that great?

[00:19:14] Speaker 04:
So in that way, I don't see how any second round of opening the record is going to help you, given that the record as is already indicates that regardless of how the claim is defined, there's a gap in the connection between the evidence submitted and the claim, however it is construed.

[00:19:39] Speaker 04:
Could you respond to that?

[00:19:41] Speaker 04:
You didn't respond to that in your opening brief.

[00:19:43] Speaker 04:
And so, and obviously the other side groups pointed that out in their yellow brief.

[00:19:49] Speaker 00:
Yes, Your Honor.

[00:19:50] Speaker 00:
So when we look at secondary considerations, it is a part of the obviousness analysis.

[00:19:56] Speaker 00:
And the obviousness analysis is incomplete if secondary considerations aren't looked at.

[00:20:01] Speaker 00:
Here, Pat Noner did not have the notice or opportunity that we should have supplied evidence with the handgun support structure and the stabilizing attachment.

[00:20:12] Speaker 00:
We did not have notice that the preambles were going to be read as limiting until the first question from the board to my friend on the other side was whether or not they believed the preambles were limiting.

[00:20:25] Speaker 00:
And they said they didn't address that in the briefings.

[00:20:28] Speaker 00:
We also find that the board erred in the underlying obviousness analysis regarding the motivation to combine.

[00:20:41] Speaker 00:
They, for them, its final written decision relied upon a misquote of Morgan.

[00:20:46] Speaker 00:
It stated that the arm support helps steady the handgun or steady the arm for firing.

[00:20:57] Speaker 00:
And actually, it's the apparatus.

[00:20:59] Speaker 00:
If we look at the element numbers, it's not the arm support itself.

[00:21:04] Speaker 00:
There are multiple supports on Morgan.

[00:21:07] Speaker 00:
And there's four different structural, four different

[00:21:10] Speaker 00:
elongated supports along with a barrel, U-shaped barrel, rest at the end of the apparatus.

[00:21:16] Speaker 00:
And the gun just sits in the apparatus as a whole.

[00:21:21] Speaker 00:
So what Morgan states in its specification is that the apparatus as a whole aids in the firing of the firearm.

[00:21:31] Speaker 00:
We also believe that the board misinterpreted the scope and content of Forgeot when it read time

[00:21:37] Speaker 00:
completely out of the Forgeau patent.

[00:21:41] Speaker 00:
The entire pain point that Forgeau was attempting to solve is to develop a mechanism that would be quicker than shouldering a weapon because prey are fast and underwater movements are slow.

[00:21:57] Speaker 00:
So in order to ensure that you capture the prey you would want to develop a device that would be quicker than shouldering.

[00:22:04] Speaker 00:
Time

[00:22:05] Speaker 00:
rapid, fast, along with rigid, are throughout the patent.

[00:22:09] Speaker 00:
So we believe that the board erred when it read out one of the intended purposes of time was not taught by Forshaw.

[00:22:22] Speaker 00:
We also believe that the board's determination of unintended slipping contradicts the plain language of Forgeau.

[00:22:29] Speaker 00:
Forgeau petitioners experts stated in his supplemental declaration that there could be the possibility of unintended slipping, but not that there would.

[00:22:40] Speaker 00:
And many of his statements were related to misuse of the actual Forgeau apparatus.

[00:22:48] Speaker 00:
Forgeau itself, it is a medal.

[00:22:51] Speaker 00:
rigid cuff that has some elasticity, enough elasticity to be able to bend the ends.

[00:22:58] Speaker 00:
And there's a screw in Forgeau that is screw three.

[00:23:02] Speaker 00:
That screw must be on the device in order to attach the stabilizing, the cuff to the support structure.

[00:23:11] Speaker 00:
And Forgeau states in its specification that at the same time the screw is turned, the opening of

[00:23:22] Speaker 00:
the opening closes for the cuff.

[00:23:26] Speaker 00:
It then goes on to state that if it's not secure enough, the user, because of the certain elasticity, can bend the ends of the metal forming a clamp.

[00:23:37] Speaker 00:
Forgeau states that it's an absolute connection and so

[00:23:44] Speaker 00:
If you look at the plain reading of Forgeot, it does not ever talk about any sort of unintended slipping.

[00:23:50] Speaker 00:
It says that it's a perfect and absolute connection that's extremely rigid with the user's forearm.

[00:23:58] Speaker 00:
We believe that taking the strap from Morgan and adding that strap into Forgeot, it would be a

[00:24:08] Speaker 00:
Building you were basically taking our device and turning it into a building block and because of the secondary Considerations and the opportunity that they provide to guard against hindsight Patent owner feels like we did not have the opportunity for this this strap would add a third element to for Joe when we already have a

[00:24:29] Speaker 00:
rigid cuff that has the screw that closes, and then the metal can form a clamp around the arm.

[00:24:39] Speaker 00:
We do not feel like that there's a motivation to combine Morgan and view a foreshow.

[00:24:44] Speaker 00:
Your Honors, I would ask that the claim construction regarding the elastomeric material and the claim construction regarding the buffer tube be affirmed.

[00:24:55] Speaker 00:
I would ask that the obvious misdetermination regarding the board's inaccurate reasoning and its reaching the necessary factual findings be reversed.

[00:25:07] Speaker 00:
And I would ask that the preamble limitations, the surprise preamble limitations, be reversed, because petitioner never had the opportunity to address this issue.

[00:25:18] Speaker 00:
And I would like to say that our dependent claims stood,

[00:25:25] Speaker 00:
Right now, as we stand here today, if the board's decision stays, patent owner is left with less rights than without petitioner even having to ask.

[00:25:39] Speaker 00:
Because the obviousness analysis is a completely separate construct than the preamble limitation claim construction.

[00:25:46] Speaker 00:
So without the petitioner even having to request it, our dependent claims for a last American buffer tube have been severely limited.

[00:25:56] Speaker 00:
We would also request it, regarding secondary considerations, that the board reverse or, at a minimum, vacate and remand to provide Patton with the opportunity to supply evidence and argument and a meaningful opportunity to respond.

[00:26:13] Speaker 00:
Thank you, Your Honor.

[00:26:15] Speaker 02:
We thank you.

[00:26:18] Speaker 01:
scary you have I'm going to restore your time to five minutes so that you can respond to the cross-appeal follow-up on the question that you had before the break We did not brief this in the in the between the parties obviously just an overview what I would submit is that

[00:26:41] Speaker 01:
Essentially what I said before, that there still are, even if you accept the board's construction, there still are major errors in the application, including whether it was considered in combination with various other references.

[00:26:54] Speaker 01:
And STs made some comments that I do not believe they understand are incorrect.

[00:27:00] Speaker 01:
For example, at the hearing, while there was an instant where Attorney Shultz said, yes, it's not in the briefing.

[00:27:07] Speaker 01:
I don't remember.

[00:27:08] Speaker 01:
Then later on, it's A3039 at lines 24 to 26.

[00:27:16] Speaker 01:
He says, it's limiting.

[00:27:17] Speaker 01:
So he comes back further on in the hearing, and he confirms that it's limiting.

[00:27:22] Speaker 01:
Now, to the issue of whether it was

[00:27:23] Speaker 03:
When you say it's limiting, what is the preamble?

[00:27:26] Speaker 03:
The preamble is limiting.

[00:27:28] Speaker 03:
When you say attorney Schultz, who is that?

[00:27:30] Speaker 01:
He's the attorney who argued before the board.

[00:27:34] Speaker 01:
He's the attorney who argued before the board.

[00:27:36] Speaker 03:
On whose behalf?

[00:27:38] Speaker 01:
Six hours.

[00:27:40] Speaker 01:
The reference that was made by NST was the reference to attorney Schultz speaking during the board hearing.

[00:27:49] Speaker 01:
So while Attorney Schultz at the board hearing on behalf of Six Hour indicated that at the beginning, he wasn't quite sure whether it was an issue, he said, no, we do believe it's limiting.

[00:28:00] Speaker 01:
And as to the issue of whether it needs to be briefed, under 02 micro and its subsequent cases, I do not believe it has to be briefed unless it's disputed.

[00:28:08] Speaker 01:
So at the outset of this case, it was not contained in NSC's brief, is that Six Hour expressly in his petitions pointed out how Forgeau met the preamble.

[00:28:17] Speaker 01:
And then the board, in its institution decision, acknowledged that and said, OK, we see the CIGs asserting this, and we don't see the NSTs opposing it.

[00:28:27] Speaker 01:
That was the first opportunity, and that's the first notice they had that this was a live issue.

[00:28:31] Speaker 01:
So I don't think there's anything inappropriate about a lack of construction where everyone's in agreement.

[00:28:42] Speaker 01:
Again, you know, I do not know how the holding with respect to the secondary considerations on the notion that even considering these references, it shows a different reason for commercial success of the commercial embodiments.

[00:28:57] Speaker 01:
I don't understand how that can be characterized as anything less than a holding.

[00:29:00] Speaker 01:
It was provided over multiple pages to consider a wide array of evidence.

[00:29:06] Speaker 01:
And it was done for the purposes of completeness, so that if and when we came before this court, we would be able to discuss all of these issues at the same time.

[00:29:17] Speaker 01:
Also, I don't understand, and it's not been suggested, what additional information are they going to submit?

[00:29:25] Speaker 01:
Because from our perspective, they gathered all of the articles that showed acclaim and success and all of that, and they submitted them.

[00:29:34] Speaker 01:
They're not going to find articles that additionally talk about other features.

[00:29:38] Speaker 01:
The articles are the articles, Your Honor.

[00:29:41] Speaker 01:
So I'm not entirely sure what evidence is going to happen here.

[00:29:46] Speaker 01:
And for that matter, it hasn't really been explained

[00:29:50] Speaker 01:
what's going to happen on secondary considerations when it goes down, and how they're going to actually dispute that.

[00:29:58] Speaker 01:
With respect to that substantial evidence, supported findings, we do not believe that NSD considered all of the evidence supporting obviousness.

[00:30:12] Speaker 01:
Essentially, where we've attacked

[00:30:16] Speaker 01:
the board's decisions.

[00:30:18] Speaker 01:
For the most part, we've attacked things that are erroneous as a matter of law and not things that would be subject to let's look at all the evidence together.

[00:30:26] Speaker 01:
With respect to NSC's arguments, I think primarily they're trying to reweigh a lot of the evidence.

[00:30:31] Speaker 01:
And they're not identifying things that singularly and in and of themselves would be sufficient to cause a remand or reversal.

[00:30:40] Speaker 01:
In addition,

[00:30:42] Speaker 01:
The notion that unintended slipping was raised later is also something that's difficult for me to understand.

[00:30:47] Speaker 01:
The title of this patent is a forearm gripping stabilizing attachment.

[00:30:53] Speaker 01:
all the disclosures, all we're dealing with here is a device that's going to prevent things like unintended slipping.

[00:31:00] Speaker 01:
I mean, there's nothing else that this device is designed for than to secure.

[00:31:04] Speaker 01:
And so maybe the term unintended slipping in quotes wasn't introduced until later, but the concepts are all there.

[00:31:11] Speaker 01:
And Mr. Nixon put in earlier in his declaration talking about perturbations.

[00:31:15] Speaker 01:
He's from Ireland, so he uses words that might not be as common here.

[00:31:20] Speaker 01:
But he's talking exactly about

[00:31:22] Speaker 01:
unintended movement and unintended slipping.

[00:31:25] Speaker 01:
So, yeah, I guess I do believe that the entire invention is directed to this concept.

[00:31:32] Speaker 04:
What about the idea that Forgeot's cuff is made of metal and it's got a screw in it, and so it's plenty secure, don't need a strap?

[00:31:43] Speaker 01:
There's nothing wrong with making something that's not as secure.

[00:31:47] Speaker 01:
There's plenty of reasons why people do that all the time.

[00:31:49] Speaker 01:
They want to save money.

[00:31:50] Speaker 01:
They want to produce it quicker.

[00:31:51] Speaker 01:
They ran out of supplies.

[00:31:53] Speaker 01:
And prior art is prior art for all it teaches.

[00:31:55] Speaker 01:
So there still would be, as we pointed out, any number of motivations to consider alternative materials.

[00:32:00] Speaker 01:
And so frankly, if you are also in agreement that the cuff in Forgeot is a sort of a non-starter, then it is still well within the knowledge of a person of ordinary skill to say, OK, let's not go with the metal cuff.

[00:32:11] Speaker 01:
Let's go with the plastic cuff.

[00:32:12] Speaker 01:
I believe these are very simple substitutions, and they would have been quite obvious to a person of skill at the time of the invention.

[00:32:19] Speaker 02:
OK, I think we have no argument.

[00:32:29] Speaker 02:
just the cross-appeal issues that he addressed, OK?

[00:32:32] Speaker 02:
Yes, Your Honor.

[00:32:33] Speaker 02:
And no other material.

[00:32:39] Speaker 00:
Thank you, Your Honors.

[00:32:41] Speaker 00:
So regarding the comment that petitioner had stated the preamble limitations, that's inaccurate.

[00:32:50] Speaker 00:
They had stated that the preamble is met by bourgeois, which is a separate, different construct.

[00:32:57] Speaker 00:
That's a subject matter.

[00:32:58] Speaker 00:
issue, petitioner never said that the preambles of our claim read life, meaning and vitality, into the body.

[00:33:08] Speaker 00:
They never said that the body of our claim was not a complete structure.

[00:33:13] Speaker 00:
That was never said.

[00:33:14] Speaker 00:
None of this was brought up.

[00:33:17] Speaker 00:
The petition controls, and Dell versus Acceleron and Nike versus Adidas both stated that a claim construction being brought up in oral argument is too late.

[00:33:27] Speaker 00:
We also are not requesting that the evidence be reweighed.

[00:33:32] Speaker 00:
We're saying that the evidence, we're saying that it's an incomplete analysis from the board.

[00:33:39] Speaker 00:
That's what we're speaking of.

[00:33:41] Speaker 00:
And if there's nothing else, Your Honors, I will rest.

[00:33:46] Speaker 02:
No.

[00:33:46] Speaker 02:
Thank you.

[00:33:47] Speaker 02:
We thank the parties for their arguments this morning.

[00:33:49] Speaker 02:
On this case, it will be taken under advisement.