[00:00:00] Speaker 04: And so our first case is Talex Medical versus Beacon Medical, 2021-2069. [00:00:12] Speaker 04: Mr. Weaver. [00:00:17] Speaker 00: Good morning, Your Honors. [00:00:19] Speaker 00: My name's Rob Weaver. [00:00:20] Speaker 00: On behalf of the vertical IP group, I'm here with my partner, Javier Sobrado, as well representing Talex. [00:00:24] Speaker 00: My plan is to march through the appellate arguments. [00:00:27] Speaker 00: There's, of course, a cross-appeal. [00:00:28] Speaker 00: And then I'll leave it to your discretion if you want me to march into the cross-appeal arguments as well. [00:00:34] Speaker 00: Or I can reserve to Mr. Kupar and then respond to him, whatever your preference is. [00:00:38] Speaker 00: So marching in. [00:00:39] Speaker 00: So we have three issues on appeal. [00:00:41] Speaker 00: First is the claim four broad flat foot number. [00:00:45] Speaker 00: After that is the claims five, the reversibly engaged issue, the claim construction issue. [00:00:50] Speaker 00: And then after that is on the second patent, the 277 patent. [00:00:54] Speaker 00: which is that arc shaped on the scaffold molding. [00:00:58] Speaker 00: So the arguments on claims four, the 942 patent, and on 277 patent, those are factual issues. [00:01:08] Speaker 00: We're looking for whether or not there's substantial evidence. [00:01:10] Speaker 00: And it's a very straightforward argument, frankly. [00:01:12] Speaker 00: Did the board miss it? [00:01:13] Speaker 00: Is there evidence that was of record that the board missed, that was there, that would have adjusted and resulted in different outcomes? [00:01:19] Speaker 00: on the broad flat foot number, what happened there was is that in the petition, the petitioner focused, Halex focused more on the broad flat foot number and its ability to stabilize the device, right? [00:01:32] Speaker 00: And in the decision to institute, the board did critique it. [00:01:35] Speaker 00: They made a decision to institute on those claims, but they made a critique and they said, well, they were skeptical that that was enough. [00:01:42] Speaker 00: So in the reply brief, in the following depositions of the expert testimony, they clarified, they said, okay, [00:01:48] Speaker 00: The criticism from the board was that the petition does not fully address how Dancy's seemingly narrow rim, on the part that's against the child's cranium, that narrow rim meets the broad requirement. [00:02:00] Speaker 00: There's another reason that came out over the course of the trial, which is that it would cause irritation. [00:02:07] Speaker 00: That broad flat foot member [00:02:09] Speaker 00: was on the child, on a pediatric child, on a young child for over a year, continuously, and then intermittently thereafter for another nine months. [00:02:16] Speaker 03: Is this argument that you're basing on the inherency? [00:02:20] Speaker 00: So the argument is that the prior teaches are suggests. [00:02:24] Speaker 00: I'm not suggesting that there is a direct teaching in the sense that you can see it. [00:02:30] Speaker 00: That was the board's problem, right, is that it does not appear. [00:02:34] Speaker 00: The picture of the NC [00:02:35] Speaker 00: is flush with the child's cranium. [00:02:37] Speaker 00: You don't actually see what that is. [00:02:39] Speaker 00: So that's sort of the question, right, is would a teacher suggest, would the prior reference teacher suggest that that would be a necessarily broad flat foot number? [00:02:47] Speaker 00: And over the course of the trial became, well, it has to be. [00:02:50] Speaker 00: It absolutely has to be. [00:02:51] Speaker 00: Certainly it's at least suggested. [00:02:52] Speaker 00: Because otherwise it would have created an irritation. [00:02:55] Speaker 00: And that was unequivated in the expert testimony as well, that there would be an irritation there. [00:03:00] Speaker 00: And the patent even talks about this. [00:03:02] Speaker 00: The patent discusses that anything contacting the skin could possibly lead to necrosis, which would be an extreme form of irritation. [00:03:07] Speaker 00: You know, skin is starting to dent, right? [00:03:10] Speaker 00: And so that's the argument. [00:03:11] Speaker 00: And the problem is that the board doesn't address this. [00:03:13] Speaker 00: That's really the error, right? [00:03:15] Speaker 00: The board is a two-sentence. [00:03:16] Speaker 00: The board's decision was a two-sentence argument, only focusing on what was appearing. [00:03:21] Speaker 00: There was never a citation to the reply brief argument. [00:03:24] Speaker 00: There was never a citation to the expert testimony. [00:03:26] Speaker 00: They just missed it. [00:03:27] Speaker 04: And that was reversal error. [00:03:29] Speaker 04: to reverse reversibly engaged. [00:03:32] Speaker 04: Sounds like a double negative. [00:03:36] Speaker 00: Let's talk about reversibly engaged, unless there's any other questions on the broad flat foot number. [00:03:41] Speaker 00: Reversibly engaged is a claim construction issue. [00:03:43] Speaker 00: We have two competing claim constructions, right? [00:03:47] Speaker 00: One, Taylor's is undeniably broader. [00:03:53] Speaker 00: The problem with beacons, scratch that. [00:03:57] Speaker 00: I understand the board's criticism. [00:03:59] Speaker 00: The main problem for the board was that the TELIX definition was so broad that it read out what reversibly meant. [00:04:08] Speaker 00: They said that the TELIX definition was really just to engage or contact, to stabilize the device. [00:04:17] Speaker 00: It's a very broad definition. [00:04:19] Speaker 00: The problem with Beacon is that they define it in a way that it's with orientation to the ear. [00:04:26] Speaker 00: It's with orientation of the patient's ear. [00:04:29] Speaker 00: There's nothing in the specification that ever talks about reversibly other than in the manner that the two surfaces are engaging with each other. [00:04:36] Speaker 00: So if you go into the specification, and this is a real problem. [00:04:40] Speaker 00: Ours might be broad. [00:04:40] Speaker 00: I'm not going to deny that. [00:04:41] Speaker 00: Ours is a very broad definition, but it at least fits. [00:04:44] Speaker 00: It at least fits and it makes sense within the specification. [00:04:47] Speaker 00: There's two instances within the specification that reversibly is used. [00:04:51] Speaker 00: One is within the horizontal and vertical surfaces and how they're engaging with each other, okay? [00:04:56] Speaker 00: The other is with respect to the cradle, right? [00:04:58] Speaker 00: This component has two components, right? [00:05:01] Speaker 00: It's the mold. [00:05:02] Speaker 00: Engagement, you're saying, is sort of the key word here. [00:05:06] Speaker 00: I think engage is the key word, yes. [00:05:08] Speaker 00: It's not to suggest that reversibly has no definition, has no meaning. [00:05:12] Speaker 00: We've got to give meaning to everything. [00:05:13] Speaker 05: In understanding what's being reversed, [00:05:17] Speaker 05: It's the engagement that may be as important as what you're saying. [00:05:20] Speaker 00: I agree with that, yes, absolutely. [00:05:24] Speaker 00: The problem with their definition, the main problem is it reads out a primary embodiment, right? [00:05:31] Speaker 00: The inventive device is the whole thing. [00:05:34] Speaker 00: It's both the mold as well as the cradle that it's sitting in. [00:05:37] Speaker 00: And it specifically says that there's a quote unquote reversible attachment in the specifications. [00:05:42] Speaker 00: Well, the cover is going towards the ear. [00:05:45] Speaker 00: So you have a primary embodiment under their definition that is completely read out of the specific hit, that is completely read out. [00:05:51] Speaker 00: It's nonsensical. [00:05:52] Speaker 04: I also want to ask you about secondary considerations. [00:05:56] Speaker 04: It's a cross appeal, and I'm giving you a little advance opportunity. [00:06:01] Speaker 04: The board found there was strong industry praise. [00:06:05] Speaker 04: in copying. [00:06:08] Speaker 04: And doesn't that count for a lot in terms of non-obviousness? [00:06:15] Speaker 00: Non-obviousness, it's your honor. [00:06:17] Speaker 00: I'm glad you prompted me. [00:06:18] Speaker 00: Let's talk about secondary considerations for just a moment. [00:06:21] Speaker 00: You can't have a discussion of the secondary considerations without talking about the nexus issue. [00:06:26] Speaker 00: The reason for that, and I hope the court caught this, is [00:06:32] Speaker 00: There are evidence of nexus, of coextensiveness, right? [00:06:35] Speaker 00: Was really just three paragraphs in an expert declaration saying here's pictures of the device and I'm familiar with the device, the Earwell device, right? [00:06:43] Speaker 00: The Earwell device, which is the commercial product that allegedly embodies the patent, again, has two components. [00:06:50] Speaker 00: It has what's called in the prior, the conformer, right? [00:06:54] Speaker 00: And then what's called the cradle or whatnot. [00:06:58] Speaker 00: In the copying evidence, there's that picture, that blue mold, that they have the labeling that they're hoping will save the issue that they introduced in the form of copying. [00:07:09] Speaker 00: The device is not sold, the device is not used, just the molding. [00:07:14] Speaker 00: The device is not just the mold. [00:07:16] Speaker 00: There's no coextensiveness shown. [00:07:18] Speaker 00: So for starters, on the 277 patent, we're done, because the 277 patent actually claims the molding component of that, and there's no labeling or anything like that [00:07:27] Speaker 00: of how there's coextensiveness of the component. [00:07:33] Speaker 00: Excuse me, no coextensiveness of the cradle. [00:07:35] Speaker 00: There's no evidence of record also that the cradle was copied, going to the point of the copying. [00:07:41] Speaker 00: To the point of the copying, I don't think the evidence is strong that there's copying. [00:07:45] Speaker 00: I understand what the board found. [00:07:48] Speaker 00: The reason it's not strong is because of the Bartlett article. [00:07:52] Speaker 00: So there's citations and discussions of the Bartlett article. [00:07:57] Speaker 00: is essentially the principle of tailics. [00:07:59] Speaker 00: And he was looking at, and there's a paper which he co-authored, where he's looking at multiple prior art references. [00:08:05] Speaker 00: And as the board correctly found, he said in the industry praise portion of the decision, was that, well, he's very critical. [00:08:13] Speaker 00: He's very critical in saying that there's a lot of issues with it. [00:08:15] Speaker 00: For instance, one of the main issues with it is that it's not properly attaching. [00:08:19] Speaker 00: So like the outer surfaces, [00:08:21] Speaker 00: are supposed to be attaching to the rim. [00:08:26] Speaker 00: And that's one of the issues it's having. [00:08:27] Speaker 00: It also doesn't work with a variety of different ear sizes, pediatric ear sizes. [00:08:34] Speaker 00: So the issue, though, is that in order to have copying, there has to be some effort to replicate. [00:08:42] Speaker 00: That's the case law, is that there has to be some effort to replicate. [00:08:45] Speaker 00: Otherwise, every instance of infringement would be copied. [00:08:48] Speaker 00: He's not trying to replicate. [00:08:49] Speaker 00: He's trying to improve. [00:08:50] Speaker 00: Certainly he had access in trying to design his superior device. [00:08:53] Speaker 00: He had access to all sorts of prior references, including their device. [00:08:58] Speaker 00: But there was not an effort to replicate. [00:09:03] Speaker 00: There was an effort to improve. [00:09:04] Speaker 03: I think that distinguishes. [00:09:05] Speaker 03: Can you get to the Nexus argument? [00:09:09] Speaker 03: The Nexus argument? [00:09:10] Speaker 03: Yeah, with respect to the objective in addition. [00:09:14] Speaker 00: Sure. [00:09:14] Speaker 00: So the Nexus, there is. [00:09:17] Speaker 00: there's no nexus absolute in the 277 patent because the 277 patent because you said before those three paragraphs that was devoted to the nexus argument right the three the three paragraphs of the expert report they're evidence of nexus so there is evidence in the record as to nexus which the board found to be insufficient which is a factual finding and i think the board was substantially there's substantial evidence to support the board why because it's only three paragraphs [00:09:47] Speaker 03: How many paragraphs do you need to establish nexus? [00:09:52] Speaker 00: I don't think there's a number, but I think in most instances more than three sentences and three pictures would not be appropriate. [00:09:58] Speaker 00: I don't have a bright line number for you, Your Honor. [00:10:02] Speaker 00: I don't think that this was enough, particularly where there's no discussion of how the claims are being met. [00:10:07] Speaker 00: Again, I'm not to suggest that this court should now lay down some rule requiring a claim chart. [00:10:13] Speaker 00: I don't think that's required, and the prior case law doesn't suggest it does. [00:10:17] Speaker 00: But there needs to be something a little bit more than just here's pictures of the devices and an expert saying I'm familiar with them. [00:10:25] Speaker 00: I don't think that's enough. [00:10:26] Speaker 00: I think the board had substantial justification, substantial evidence to make that conclusion. [00:10:31] Speaker 00: Again, with the 277 patent, they did go a little further in the copying of the labeling. [00:10:36] Speaker 00: That doesn't help in the 277 patent because that only dealt with the molding device, the conformer. [00:10:41] Speaker 00: And then conversely, Fox Factory talks about you having to have components of what you have to identify at the commercial devices as well. [00:10:53] Speaker 00: The success, any alleged success or industry praise or whatever, of the commercial device is on the whole thing, right? [00:10:59] Speaker 00: It would be on both the cradle and the ear molding as well. [00:11:02] Speaker 04: It must be on what's patented, not necessarily what's sold. [00:11:09] Speaker 00: Correct. [00:11:10] Speaker 00: So Fox Factory talks about this [00:11:13] Speaker 00: of the spectrum, if you will, of what is the commercial embodiment, right? [00:11:18] Speaker 00: And where it's just a component of the commercial embodiment, I guess that's more eloquently what I'm trying to get at, where it's just a component of the commercial embodiment, you don't get that presumption that I think Taylor took for granted before the board. [00:11:27] Speaker 00: Excuse me, that Began took for granted before the board. [00:11:33] Speaker 00: Because the 924 patent only deals with a component, they don't get that presumption. [00:11:37] Speaker 00: That's the bottom line of the argument I'm making on the Nexus, in addition to that I think the board had substantial evidence for that. [00:11:42] Speaker 00: I'm well into my rebuttal time. [00:11:44] Speaker 00: I suggest yielding and returning, unless there's anything else you'd like to ask at this time. [00:11:50] Speaker 04: We will save it for you. [00:11:51] Speaker 00: Very good. [00:11:52] Speaker 00: Thank you very much. [00:11:52] Speaker 04: Mr. Kupar. [00:11:55] Speaker 01: Good morning, Your Honor. [00:11:58] Speaker 04: Do I pronounce your name correctly? [00:12:00] Speaker 01: Perfectly. [00:12:02] Speaker 01: My Croatian parents, thank you for that. [00:12:05] Speaker 04: And you don't need your mask unless you want to wear it. [00:12:10] Speaker 02: One moment. [00:12:11] Speaker 02: Good morning and may it please the court. [00:12:14] Speaker 02: I'll first address the three appeal issues that Taleks brought forth and I'll reserve as much as my time as to the cross-appeal issues. [00:12:23] Speaker 03: Counsel, maybe you can help us by telling us exactly what happens to the case if we reverse on the construction reversibly engaged. [00:12:33] Speaker 03: How does that affect the remaining arguments? [00:12:36] Speaker 02: So if the irreversibly engaged only affects claims five through seven of the 942 patent and nothing else. [00:12:49] Speaker 02: On the two factual issues, claim four of the 942 patents, claim 16 of the 942 patents, the short answer there is all of the facts that are raised in the appeal briefing from TALIC's work was considered by the board. [00:13:03] Speaker 02: There's no clear error, there's no error by the board's decision as to the fact that Dancy does not have a foot including a broad flat surface as to claim four of the 942 patents. [00:13:15] Speaker 02: One point I just want to raise for the purpose of this appeal on that issue specifically is that the Talics expert in the declaration with the original petition stated the following, quote, Dancy illustrates a broad flat surface at the bottom of the foot member. [00:13:33] Speaker 02: And that's an appendix 1876 paragraph 77 of his declaration illustrates. [00:13:39] Speaker 02: He said that. [00:13:40] Speaker 02: And then the board, of course, stated, looking at all of the evidence, that the Dancy reference, the figures there do not teach or disclose that. [00:13:48] Speaker 02: And in fact, my colleague here, as he stood up, and he also said this in his blue brief, Alex's blue brief, at page 28, quote, admittedly, [00:13:57] Speaker 02: The photographs of Dancy do not show the entirety of the surface contacting the patient's skin. [00:14:03] Speaker 04: Counsel, I want to ask you about secondary considerations. [00:14:06] Speaker 04: This is your cross appeal. [00:14:10] Speaker 04: The board said nexus wasn't shown. [00:14:14] Speaker 04: Right. [00:14:15] Speaker 04: And what you have to have shown is that the patented product is what had the strong [00:14:28] Speaker 04: industry praise and the copying. [00:14:34] Speaker 04: And the board said the evidence just was based on a presumption that contained no analysis to support the contention. [00:14:49] Speaker 04: It said only a single sentence appears pertinent to whether the e-wall device is covered by the claims. [00:14:58] Speaker 04: And these are fact findings, aren't they? [00:15:01] Speaker 02: Well, Your Honor, they are. [00:15:02] Speaker 02: And the law is the Polaris case we cited in our briefing. [00:15:07] Speaker 02: And what the Polaris case did was remand on that basis. [00:15:11] Speaker 02: There was enough evidence to show a presumption of nexus. [00:15:15] Speaker 02: And here's what we presented. [00:15:17] Speaker 02: Here's what the board didn't do. [00:15:18] Speaker 02: And here's, and TALIX itself did not provide any rebuttal evidence, which was important in the Polaris case. [00:15:25] Speaker 02: As Judge Rain identified, the board [00:15:27] Speaker 02: with those three paragraphs, how much is enough to present for a presumption of nexus. [00:15:33] Speaker 02: Both of our experts, these are world-class surgeons, identified [00:15:37] Speaker 02: literal sections that states that the beacon ear well device, or excuse me, the 942 patent claims you read on the ear well device. [00:15:45] Speaker 02: There's literal sections in their declarations. [00:15:48] Speaker 05: Is this at 3340, for example, of the joint appendix, Mr. Goodwin? [00:15:52] Speaker 02: That's right. [00:15:53] Speaker 02: Appendix 3338 through 3344. [00:15:55] Speaker 02: That's right. [00:15:58] Speaker 02: And the board didn't even address that evidence. [00:16:00] Speaker 02: And so the Polaris standard is a relatively low standard for presumption. [00:16:05] Speaker 02: If there's a missing claim limitation in the commercial product, that's the [00:16:10] Speaker 02: That's the right of the petitioner to raise that rebuttal and say, hey, this commercial embodiment's missing a limitation, for example. [00:16:16] Speaker 02: That did not happen here. [00:16:17] Speaker 02: There's no record evidence of rebuttal evidence from Talics rebutting that presumption of nexus. [00:16:23] Speaker 02: That presumption of nexus should have carried the day, the evidence we presented. [00:16:28] Speaker 02: The board didn't even analyze that evidence and then concluded there is no evidence. [00:16:32] Speaker 02: That's legal error. [00:16:33] Speaker 02: And at a minimum, that should be a remand purple errors. [00:16:36] Speaker 05: Well, one question I just want to make sure I understand. [00:16:40] Speaker 05: Um, claims one, three, and nine of the nine four two patent. [00:16:46] Speaker 05: Uh, they involve, uh, the issue. [00:16:51] Speaker 05: I'm looking for the, uh, exactly this molding issue. [00:16:57] Speaker 05: Okay. [00:16:57] Speaker 05: That's claims, uh, one of the nine four two patent, right? [00:17:04] Speaker 05: Correct. [00:17:04] Speaker 05: And then it comes up also in the, [00:17:07] Speaker 05: in various claims of the 277 patent. [00:17:12] Speaker 05: And in one case, they didn't construe the claim in the case of the 942 patent, but they kind of alternatively construe it in the case of the 277 patent when they were talking about whether to allow you to add in the additional claims. [00:17:32] Speaker 05: They said even if we accept reshaping, we find [00:17:36] Speaker 05: that it doesn't do that. [00:17:39] Speaker 05: Or it does do that. [00:17:41] Speaker 05: I guess it's that the Japanese reference. [00:17:44] Speaker 05: I can't pronounce it too well. [00:17:46] Speaker 02: Have I got the scenario correct? [00:17:48] Speaker 02: If I understand where you're going, yes. [00:17:51] Speaker 05: Not only address that situation where they on one hand said that reshaping and the Japanese reference did it, but in the other they didn't construe it. [00:18:01] Speaker 02: Didn't construe it, right. [00:18:02] Speaker 02: They only addressed it in one but not the other. [00:18:05] Speaker 02: The bottom line is where they did address it in that 277. [00:18:08] Speaker 02: That was flat out error. [00:18:11] Speaker 02: What we presented was evidence on the Yatsuyo Nagi reference. [00:18:15] Speaker 02: This assumes that... Pronounce it, thank you. [00:18:17] Speaker 02: Yeah, of course. [00:18:18] Speaker 02: Dr. Yatsuyo Nagi is a researcher in Japan and is a pediatric surgeon just like our experts are as well. [00:18:27] Speaker 02: The issue was what was Yahtzee and Aggie doing there. [00:18:29] Speaker 02: And the point being is Yahtzee and Aggie's device and what our experts did and what Talix's expert did not do. [00:18:36] Speaker 02: Talix's expert did not analyze those patient cases. [00:18:39] Speaker 02: This is a medical device case at its core. [00:18:41] Speaker 02: So you have to look at patient cases. [00:18:43] Speaker 02: What's outcome? [00:18:44] Speaker 02: What did the device do? [00:18:45] Speaker 02: Did it do something? [00:18:46] Speaker 02: Did it not? [00:18:47] Speaker 02: And that's the error here. [00:18:49] Speaker 05: The tallex expert did in the petition and that they did use in the 277 the construction you're urging kind of alternatively reshaping. [00:18:57] Speaker 02: Right. [00:18:57] Speaker 02: But yeah, and that's true. [00:18:59] Speaker 02: And what the problem is, is this in 942 patent, and we identify this in our contingent motion to amend the alternative. [00:19:07] Speaker 02: The 942 patent claim 1 recites mold the helix and helical rim. [00:19:12] Speaker 02: It does state that limitation. [00:19:14] Speaker 02: Claim 1 of the 277 patent does not state that, oddly. [00:19:18] Speaker 02: So that's why we raised that as an alternative appeal issue here. [00:19:22] Speaker 02: In case we need to add that, if that's the language that carries the day, that should have been then added in the 277. [00:19:28] Speaker 02: We think it does because that's one of the three big functional limitations. [00:19:32] Speaker 02: and claim one of the 9-4-2 patents, and then there's two functionals in 2-7-7. [00:19:36] Speaker 04: You want to save up to 10 minutes. [00:19:41] Speaker 02: Yeah, I'm breaking in. [00:19:42] Speaker 04: Well, that's up to your choice. [00:19:44] Speaker 02: I'll go down to seven minutes, about 30 more seconds. [00:19:46] Speaker 02: I'll make this last one. [00:19:47] Speaker 02: Your choice. [00:19:48] Speaker 02: Thanks, Your Honor. [00:19:49] Speaker 02: My point is this on that. [00:19:51] Speaker 02: The three functional limitations are retain, maintain, and mold. [00:19:58] Speaker 02: That's what claim one says. [00:20:00] Speaker 02: The claim one of the 277 doesn't say mold the helix and helicogram. [00:20:05] Speaker 02: It does say molding device. [00:20:07] Speaker 02: My point is simple. [00:20:08] Speaker 02: The prior art needs to show all three of those functional limitations. [00:20:12] Speaker 02: It doesn't do that. [00:20:13] Speaker 02: So for example, with the Yahtzee and Agni reference, Judge Schall, it actually misshapes the ear. [00:20:19] Speaker 02: And that's what that evidence is showing. [00:20:20] Speaker 02: CalX's expert ran away from that. [00:20:22] Speaker 02: Ours did not. [00:20:23] Speaker 02: They bore the burden of proof. [00:20:25] Speaker 02: And I'll stop there and reserve the remainder for my rebuttal time, Your Honors. [00:20:29] Speaker 04: We will save the rest for you, assuming there will be something to rebut. [00:20:33] Speaker 02: That's right. [00:20:33] Speaker 02: Fair enough, Your Honor. [00:20:35] Speaker 04: Mr. Weaver, you have 3.44. [00:20:37] Speaker 04: There's a lot of time left. [00:20:43] Speaker 00: I'm tempted not to say anything. [00:20:44] Speaker 00: But that said, there are a couple of things I do want to still make sure that's addressed. [00:20:49] Speaker 00: We were talking about scaffold molding, which we didn't get into mine. [00:20:52] Speaker 00: If I was to make any point on this that may not have come out in the briefs, [00:20:56] Speaker 00: is that this is really a distinguishing between reshaping. [00:21:02] Speaker 00: What does molding mean? [00:21:03] Speaker 00: Does it require a reshaping? [00:21:04] Speaker 00: I don't think that it's correct to say that a reshaping, it's not so much that it's reshaping. [00:21:08] Speaker 00: For them to win their argument, it has to be that it's reshaping of the ear cartilage, right? [00:21:13] Speaker 00: The ear is composed of more than just cartilage. [00:21:15] Speaker 00: It also has skin. [00:21:16] Speaker 00: There's ear deformities that affect the skin. [00:21:18] Speaker 00: The specification, and this was talked about, and I didn't see a rebuttal to it in the reply [00:21:22] Speaker 00: In the patent, within the specification of the patent, there's something called constricted ear. [00:21:27] Speaker 00: Constricted ear, grade one of constricted ear is referred to as tensor one in the specification. [00:21:32] Speaker 00: Constricted ear can be just dealing with the skin. [00:21:37] Speaker 00: It doesn't require, you can reshape the ear without necessarily dealing with the skin. [00:21:41] Speaker 00: I think that gets to the heart of what the board was trying to say when there was [00:21:48] Speaker 00: no limitation in the claims. [00:21:49] Speaker 00: The claims don't suggest that it's treating a particular type of deformity, that when you're reshaping, oh, it's only reshaping the cartilage. [00:21:55] Speaker 00: To read it that way would be, it would suggest that, well, the claims then can't infringe if we're talking about the device being in use for a six-month-year-old, because under their arguments, according to the evidence that they're presenting, well, six months, the cartilage is set, yet alone six years, right? [00:22:10] Speaker 00: That's some of their principle criticisms of the Yotsunagi reference, right? [00:22:13] Speaker 00: So reading it that way, you would say, okay, well, [00:22:15] Speaker 00: And I guess the claim doesn't infringe any time it's being used on a six-month-old, because under the evidence, the cartilage is set, so it can't be reshaping. [00:22:22] Speaker 00: That can't be true. [00:22:23] Speaker 00: That's nonsensical. [00:22:25] Speaker 00: So that was one point I wanted to make on the scaffold molding of nothing else. [00:22:28] Speaker 00: It might not have come out from that. [00:22:30] Speaker 00: Really, the only other point I wanted to make was there was a question from the panel about reversibly engaged and what happens on remand. [00:22:36] Speaker 00: I don't see an argument in the record about reversibly engaged. [00:22:40] Speaker 00: If we went our definition, [00:22:44] Speaker 00: The prior art reads on it. [00:22:46] Speaker 00: Dancy reads on it. [00:22:47] Speaker 00: I didn't see that rebutted in the record. [00:22:48] Speaker 00: So there's nothing to remand on this, right? [00:22:51] Speaker 00: It's either a reversal or an affirmance on that. [00:22:55] Speaker 00: If we win our definition, Dancy reads on it. [00:22:56] Speaker 00: If we don't, Dancy doesn't. [00:22:59] Speaker 04: You want to restate that? [00:23:00] Speaker 04: Why wouldn't we remand and let the board look at a different claim construction? [00:23:07] Speaker 00: Because there's no argument of record. [00:23:09] Speaker 00: Remanding is not necessary if it's just unrebutted in the record. [00:23:12] Speaker 00: There's no argument of record as to how Dancy doesn't meet the limitations under our definition. [00:23:20] Speaker 00: Put another way, if you agree that our definition is a superior definition, there's no argument of record how Dancy doesn't meet that. [00:23:28] Speaker 00: It all rises and falls in the definition of reversibly engaged. [00:23:31] Speaker 00: So at least on that point, remand shouldn't be necessary. [00:23:36] Speaker 00: The only other, in my last minute, we did not get to claim 16, which is the arcuate shape. [00:23:42] Speaker 00: I just wanted to make sure that it was clear for the panel. [00:23:44] Speaker 00: It's a very straightforward argument that I can do in 45 seconds. [00:23:48] Speaker 00: Again, they just missed it. [00:23:49] Speaker 00: There's annotated figure six. [00:23:51] Speaker 00: I never saw a citation in the board petition to annotated figure six. [00:23:55] Speaker 00: There's a string site. [00:23:56] Speaker 00: They talk about all the sort of references, all the figures in the Yotsunagi. [00:23:59] Speaker 00: Annotated figure six clearly shows that little arc on what would be considered the scaffold mold. [00:24:06] Speaker 00: They referenced figures two, three, and four in the decision. [00:24:09] Speaker 00: That's talked about at length. [00:24:11] Speaker 00: I understand the criticism. [00:24:13] Speaker 00: But had they considered annotated figure six, they would have come to a different decision on that. [00:24:18] Speaker 00: So no substantial evidence. [00:24:19] Speaker 00: We have 10 seconds left. [00:24:19] Speaker 00: Any other questions I can answer? [00:24:23] Speaker 00: Thank you for your time. [00:24:24] Speaker 04: I guess not. [00:24:26] Speaker 04: Mr. Kupar, you made a strategic decision to save time to rebut on the cross-appeal. [00:24:33] Speaker 04: And I don't think I heard anything [00:24:36] Speaker 04: on the cost appeal just said. [00:24:38] Speaker 04: So unless you tell me I'm wrong, I think you'd waive your remaining time. [00:24:44] Speaker 02: I'd waive my remaining time, Your Honor, at that point. [00:24:46] Speaker 02: But there is something on the appeal issue that he did raise. [00:24:49] Speaker 04: Well, on the appeal issue, the appellee doesn't get a second argument. [00:24:53] Speaker 04: That's true. [00:24:54] Speaker 04: Right. [00:24:54] Speaker 04: So we've heard your argument. [00:24:58] Speaker 04: We've been all ears. [00:25:01] Speaker 04: And we'll take the case under submission.