[00:00:00] Speaker 02:
Next case is also Axonics versus Medtronic, 2022, 1534, and 1583.

[00:00:08] Speaker 02:
Mr. Powers.

[00:00:10] Speaker 03:
Thank you, your honor.

[00:00:11] Speaker 03:
May it please the court.

[00:00:13] Speaker 03:
The technology at issue in this appeal is quite simple.

[00:00:16] Speaker 03:
It's whether you would be motivated to add a sensor to a medical device that is touching a patient's skin to make certain you don't burn that patient.

[00:00:26] Speaker 03:
The board made two errors, which we contend are legal.

[00:00:30] Speaker 03:
on the question of motivation to combine.

[00:00:32] Speaker 03:
The issue of motivation to combine, of course, is a factual question.

[00:00:36] Speaker 03:
And this court is rightfully skeptical of many appellants' attempt to convert a factual question into a legal question, subject to de novo review.

[00:00:45] Speaker 03:
I respectfully submit that both of the errors made here are legal ones, squarely within this court's decision in Belden, which did exactly what we're asking this court to do.

[00:00:56] Speaker 03:
which is reversed a board's finding of no motivation to combine, because, quote, it rests on legal errors.

[00:01:05] Speaker 03:
Each of the two grounds that the board rested its finding of no motivation to combine rested on a different legal error.

[00:01:14] Speaker 03:
The first issue.

[00:01:15] Speaker 02:
Didn't the board have evidence on which it relied that the rarest didn't need

[00:01:24] Speaker 02:
A temperature sensor.

[00:01:28] Speaker 03:
The board had two pieces of evidence on which it relied.

[00:01:33] Speaker 03:
Neither, I would submit, is substantial evidence, and both committed a legal error.

[00:01:39] Speaker 03:
The first theory of motivation to combine was that there is a safety standard requiring that the piece of metal that is contact or plastic that is contacting the patient's skin not exceed 41 degrees C.

[00:01:53] Speaker 03:
where 37 degrees C is skin temperature.

[00:01:57] Speaker 03:
Our argument was, when you're trying not to burn a patient and comply with that standard, it's common sense to have a temperature sensor to make certain you're not over 41 degrees C. The board's reaction to that was not to dispute that that would be a motivation to comply.

[00:02:15] Speaker 03:
That was not what the board's finding was.

[00:02:17] Speaker 03:
The board's evidence was that it was theoretically possible

[00:02:22] Speaker 03:
theoretically possible to comply with that standard without a sensor.

[00:02:26] Speaker 04:
Well, I don't think that's quite right.

[00:02:27] Speaker 04:
I think what the board seemed to be saying is that there was no known problem of overheating.

[00:02:33] Speaker 04:
It was known that these devices could generate heat as a result of the contact of the coils.

[00:02:42] Speaker 04:
uh... but not that there was not a known problem overheating and so that using a sensor to solve the problem didn't create motivation to combine because of the absence of a known problem in the first place.

[00:03:01] Speaker 03:
You're absolutely correct, but that applies to the second argument on motivation to combine.

[00:03:06] Speaker 03:
The first was just compliance with the standard alone.

[00:03:08] Speaker 03:
When you look at Appendix 27, their only response to that argument

[00:03:13] Speaker 03:
was it's theoretically possible to comply with the standard without a censor.

[00:03:18] Speaker 03:
And the law of this court is quite clear.

[00:03:21] Speaker 03:
Where do they say theoretically possible?

[00:03:25] Speaker 03:
They're relying on our expert who said that it was possible, but no one identified an actual device that would have done that.

[00:03:36] Speaker 03:
There was this other device that was mentioned later.

[00:03:39] Speaker 03:
But when you look at appendix 27,

[00:03:42] Speaker 03:
There's no specific recitation.

[00:03:44] Speaker 03:
That's just our expert admitting, I guess you could have advice, but nothing particular.

[00:03:50] Speaker 03:
So on Appendix 27, it's, I think, clear.

[00:03:54] Speaker 03:
They're relying on that being possible.

[00:03:58] Speaker 03:
And that violates this court's rules that are quite clear that say, to be obvious, it doesn't have to be the best solution or the only solution.

[00:04:07] Speaker 03:
It just has to be one that would occur to one of ordinary skill in the art.

[00:04:10] Speaker 03:
That's the Bayer-Farmer case.

[00:04:12] Speaker 01:
Mr. Powers, so you have the burden on this.

[00:04:17] Speaker 01:
And I understand that if you had the following kind of evidence, there might be a problem.

[00:04:25] Speaker 01:
But the board, as I understand what it did, was to say, we're going to pay attention to what your evidence says.

[00:04:35] Speaker 01:
But ultimately, the problem is not so much what your evidence says as what it doesn't say.

[00:04:41] Speaker 01:
That is, you did not have evidence that there was enough of a recognized possibility of overheating, even if overheating wouldn't occur all that often, but that there was enough of a possibility that a skilled office would be motivated to take the step of adding a sensor to protect against it.

[00:05:05] Speaker 01:
And I don't see in your brief, your having pointed to anything that fills that gap.

[00:05:12] Speaker 01:
And a gap is enough for the board to say you didn't prove your case.

[00:05:16] Speaker 03:
Thank you, Your Honor.

[00:05:17] Speaker 03:
I think there are two things in the record that fill that gap.

[00:05:20] Speaker 03:
The first is Taylor, which is the reference with the sensor.

[00:05:24] Speaker 03:
And Taylor specifically suggests adding a sensor to comply with the standard.

[00:05:28] Speaker 03:
The quote from Taylor is, a thermistor such as the PT-100 can be incorporated in the transmitter.

[00:05:34] Speaker 03:
to assure that the temperature of the legs does not exceed the requirement for brief patient contact as defined in EN 60601, which is the standard that says 41 degrees.

[00:05:45] Speaker 03:
So Taylor provides the explicit statement that that's the purpose of having the temperature sensor, is to ensure compliance with that standard.

[00:05:56] Speaker 03:
The second piece of evidence, and it's actually three pieces of evidence,

[00:06:00] Speaker 03:
that fills that gap, Your Honor, are the references that talk about how you have heating in the coils of the charger.

[00:06:08] Speaker 03:
And this now translates to the second error that we're asserting, where the board found, and this relates to your question, Judge Stike, the board found that there was no perception of a problem in a charger based on eddy current heating, because eddy current heating wouldn't apply in the plastic housing of the charger.

[00:06:30] Speaker 03:
which may be true, but it is irrelevant to what we argued was the motivation to comply, which is the risk of heating from the coils in the charger itself.

[00:06:41] Speaker 03:
Taylor had a coil heating, and it said you need the sensor to make sure you comply with the standard.

[00:06:48] Speaker 03:
And we provided three pieces of evidence from references showing that there is a problem with heating

[00:06:54] Speaker 03:
through the coils.

[00:06:55] Speaker 03:
It may not happen through eddy current, but the motivation to combine law and motivation to solve a problem law that we cited in the briefs say you can't just limit yourself to one particular problem as the board did.

[00:07:08] Speaker 03:
The board limited it to eddy current heating, which is irrelevant to the problem we identified, which is heating arising from the coils.

[00:07:15] Speaker 03:
And the three pieces of evidence, the three pieces of art, let's start with Mitsuki.

[00:07:20] Speaker 03:
Mitsuki shows quite clearly with heating with the coils,

[00:07:23] Speaker 03:
that you will get way over 41 degrees C very quickly based on the calculations and arrangements that they had.

[00:07:32] Speaker 03:
That was in Figure 7 of Mitsuki.

[00:07:34] Speaker 03:
And the idea that that doesn't show a heating problem and that there's no evidence of a heating problem that should be a basis for concern completely ignores the teaching of Mitsuki.

[00:07:45] Speaker 03:
The board's only response to Mitsuki was, well, that wasn't in the context of a physical device that had an implant, et cetera, et cetera.

[00:07:52] Speaker 03:
Irrelevant.

[00:07:53] Speaker 03:
What Matsuki teaches is the heating of those coils gets you way over 41 degrees very quickly.

[00:08:00] Speaker 03:
And that creates the concern that would motivate someone skilled in the art to say, I think we shouldn't be burning patients.

[00:08:06] Speaker 03:
Let's have a sensor to make sure we don't.

[00:08:08] Speaker 03:
But that's not just Matsuki.

[00:08:10] Speaker 03:
It's also carbonara.

[00:08:12] Speaker 03:
Carbonara was similarly a charging system which contacted the patient's skin.

[00:08:16] Speaker 03:
And the specific evidence was that

[00:08:19] Speaker 03:
You have to have a sensor to assure, quote, the exterior surface of the chair pad is at 41 degrees or less.

[00:08:26] Speaker 03:
That was the teaching of carbonara.

[00:08:28] Speaker 03:
The third piece of evidence that was in the record is that both sides' experts admit that there is heating that comes from the coils in these chargers, not the eddy currents.

[00:08:38] Speaker 03:
Let's forget about the eddy currents.

[00:08:39] Speaker 03:
What they denied was eddy currents.

[00:08:41] Speaker 03:
We don't care about eddy currents.

[00:08:43] Speaker 03:
What we care is about the risk of heating from the coils.

[00:08:47] Speaker 03:
Their experts admitted

[00:08:48] Speaker 03:
Dr. Howler, for example, this is at appendix 2107.

[00:08:52] Speaker 03:
Dr. Berger, the appendix at 3053, all admit that there is a risk of heating coming from those coils, which is a matter of just physics is true.

[00:09:04] Speaker 03:
You have an energy going on.

[00:09:06] Speaker 01:
Can I just ask, you switched several times between the word heating and overheating.

[00:09:12] Speaker 01:
Is that significant?

[00:09:15] Speaker 03:
The risk of heating, of course, creates the risk of overheating.

[00:09:20] Speaker 01:
In the sense in which that would help you, that's not true.

[00:09:27] Speaker 01:
If there's a risk of heating up to, I don't know, 20 degrees C, but no risk of going to 37 or 41 or whatever the figure is,

[00:09:43] Speaker 01:
even though it was a risk of heating.

[00:09:45] Speaker 03:
Understood.

[00:09:45] Speaker 03:
Masuki makes quite clear, as I said, that the coils could go well over 41 degrees quickly.

[00:09:51] Speaker 03:
Carbonaro specifically says the temperature sensor is used to ensure that the exterior surface of the chair pad is at 41 degrees C or less.

[00:10:02] Speaker 03:
That tells you that those people skilled in the art were concerned about the

[00:10:08] Speaker 03:
the exterior surface touching the patient exceeding 41 degrees and put a sensor in that device to make certain it did not.

[00:10:17] Speaker 03:
That is a risk of overheating by definition.

[00:10:22] Speaker 03:
And the only response from the board, and I want to emphasize this clearly, there were two responses from their expert and one statement from the board adopting both of their responses.

[00:10:36] Speaker 03:
The two responses from the expert were, one, there is no risk of overheating or heating from eddy currents because the container is plastic.

[00:10:45] Speaker 03:
It's irrelevant.

[00:10:46] Speaker 03:
That's not what we're saying the motivation is.

[00:10:48] Speaker 03:
It's from the heating of the coils.

[00:10:50] Speaker 03:
The second response was to assert in pure ipsy-dixel, with absolutely no evidence at all, that there would not be an expectation of a possibility of overheating from the charger.

[00:11:03] Speaker 03:
That's what the expert said.

[00:11:04] Speaker 03:
He used those words.

[00:11:07] Speaker 03:
That's what the board adopted.

[00:11:08] Speaker 03:
It followed his words.

[00:11:10] Speaker 03:
But when you go to look at the actual language that that expert used, there was absolutely no statement by him supporting the latter part of it.

[00:11:21] Speaker 03:
The first part, there was evidence that the eddy currents wouldn't be a problem.

[00:11:24] Speaker 03:
That's irrelevant to our argument.

[00:11:26] Speaker 03:
The second part, which is actually the key piece, which is a throwaway ipsy dixit line that says,

[00:11:33] Speaker 03:
and there would be no perception of heating in the charger, is A, inconsistent with the evidence of record that I've just identified, but B, not supported by any piece of evidence at all.

[00:11:45] Speaker 03:
And the legal error of the board was limiting the motivation to combine to one problem, eddy current heating, where this court's case law is very, very clear.

[00:11:58] Speaker 03:
You can't limit the motivation to combine to a single problem

[00:12:01] Speaker 03:
that the inventor had or somebody else has.

[00:12:04] Speaker 03:
Motivation combined can come from anywhere.

[00:12:06] Speaker 04:
So the board said at day 29 that Matsuki teaches overheating is a concern for a transmitting charging device implanted just below the skin.

[00:12:17] Speaker 04:
What the board seems to be saying is that Matsuki talks about overheating in the implant and not the transmitting device.

[00:12:27] Speaker 03:
When you look at Matsuki figure 7 in particular, it's the opposite.

[00:12:31] Speaker 03:
Matsuki teaches that the heating at the charger is greater than at the implement.

[00:12:35] Speaker 03:
That's what it teaches.

[00:12:38] Speaker 02:
Mr. Powers, you're well into your rebuttal time.

[00:12:41] Speaker 02:
You can continue or save it.

[00:12:42] Speaker 03:
I will definitely save it.

[00:12:43] Speaker 03:
Thank you, Your Honor.

[00:12:46] Speaker 02:
Mr. Modi.

[00:12:49] Speaker 05:
Good morning again, Your Honor.

[00:12:50] Speaker 05:
It's made please the Court.

[00:12:53] Speaker 05:
Here, before the board of Sonics presented a single theory, Judge Dyke, you're right, there was a single theory of motivation, where motivation to modify... Judge Toronto, how are you hearing that?

[00:13:04] Speaker 01:
Oh, it's lovely to hear Mr. Modi's voice.

[00:13:08] Speaker 05:
Thank you, Your Honor.

[00:13:11] Speaker 05:
So the issue before the board was whether one of ordinary skill would have modified the Barrera 313 recharger with the temperature sensor of Taylor to comply with the safety standard.

[00:13:24] Speaker 05:
That is the motivation they put forward before the board.

[00:13:26] Speaker 05:
And the board rejected that motivation.

[00:13:28] Speaker 04:
The key question is, did they present evidence of overheating?

[00:13:32] Speaker 05:
And they did not, your honor.

[00:13:34] Speaker 04:
So what about the boards dismissal these references on 830 in the unlike sense?

[00:13:42] Speaker 04:
It seems to me a bit confusing.

[00:13:44] Speaker 04:
So where does the board say that Matsuki doesn't show overheating transmitter?

[00:13:52] Speaker 05:
Sure, Your Honor, I think we can actually go right to that.

[00:13:55] Speaker 05:
So if you look at the way the board addressed Matsuki, so remember this came in on reply, so the board looked at their arguments, and the board said, and this is at the bottom of page 29, the board said, Matsuki evaluates temperature rise on transcutaneous energy transmission by a pair of spiral coils, not by a transmitter, and an implanted medical device, much less an implanted medical device, enclosed in a metal housing.

[00:14:20] Speaker 05:
So that is a factual finding that is entitled to deference.

[00:14:23] Speaker 05:
And how did the board make that finding Judge Dyke?

[00:14:26] Speaker 05:
I think if you look at the way this was framed again before the board.

[00:14:29] Speaker 05:
They came in, and they said, using hindsight, that you would put a temperature sensor using Taylor's device.

[00:14:36] Speaker 05:
First of all, Taylor is fundamentally different from the coil charging, the recharger that we have in Barrios 313, right?

[00:14:43] Speaker 05:
So at the end of the day, Judge Dyke, if you can go back to how this all was set up in the board's decision, if you go to Appendix 34, again, the board very methodically stepped through the evidence in this case and found in our favor and substantial evidence.

[00:14:57] Speaker 04:
Did your expert address Matsuki?

[00:15:00] Speaker 05:
No, Your Honor, he did not, because it came in on reply.

[00:15:03] Speaker 05:
So we did not get an opportunity to address Matsuki, but we do think the board's treatment of it was correct here.

[00:15:09] Speaker 05:
The board looked at it.

[00:15:10] Speaker 05:
They said, well, this is testing coils in an open space.

[00:15:12] Speaker 05:
It's not in the context of a recharger, right?

[00:15:15] Speaker 05:
And that's what we have.

[00:15:16] Speaker 05:
You have to look at what the question of obviousness was here.

[00:15:20] Speaker 05:
It was whether one of skill in the art would take the Barreras 313 recharger

[00:15:25] Speaker 05:
whether they would put a temperature sensor in that recharger.

[00:15:29] Speaker 05:
And the board answered that question as saying they would not.

[00:15:32] Speaker 05:
Exonic simply failed to meet its burden of proof.

[00:15:35] Speaker 05:
And we made several arguments to rebut that, their motivation.

[00:15:40] Speaker 05:
And if you look at the board's decision at appendix 34, the board points out what their argument was.

[00:15:45] Speaker 05:
And then I think what I want to point out is at the bottom of 24 and just like this, I think that's partially to your question, which is

[00:15:52] Speaker 05:
Medtronic presented three separate arguments to rebut their showing of motivation.

[00:15:57] Speaker 05:
First, Medtronic argued that the system of Barreras 313 did not need a temperature sensor on the transmitter to comply with their asserted 41 degree limitation.

[00:16:08] Speaker 05:
That was one.

[00:16:09] Speaker 05:
Second, Medtronic argued that Episcida would not have expected overheating in the transmitter of Barreras 313.

[00:16:16] Speaker 05:
That's the second argument we made.

[00:16:18] Speaker 05:
And then the third argument, which the board did not reach because they did not need to reach that argument, was

[00:16:23] Speaker 05:
Pat Nohner argues Taylor's temperature sensor in the transmitter would not have motivated a posita to include a temperature sensor in the transmitter of Barrios 313.

[00:16:32] Speaker 05:
And what did the board do?

[00:16:33] Speaker 05:
The board then methodically stepped through each argument and looked at, with the exception of the third one, it looked at the first two arguments.

[00:16:40] Speaker 05:
It's tied to the evidence that we presented.

[00:16:41] Speaker 05:
I heard Council for Exonix say, well, we did not present evidence that Barrios 313 would not have resulted in overcharging.

[00:16:51] Speaker 05:
We did, Your Honor.

[00:16:52] Speaker 04:
Did your expert address the question of whether coil overheating could be a problem or did he simply say that metallic housing overheating could be a problem but we don't have metallic housing?

[00:17:13] Speaker 05:
So, Your Honor, I believe he addressed both of those issues, and I was actually going to give you the citations to that evidence.

[00:17:19] Speaker 05:
And that said, so Dr. Holler, our expert, testified that a PUSSIDA would not have expected, again, the key issue is the charger in BRERAS, which would have the coils, to overheat.

[00:17:28] Speaker 05:
And you can find that at appendix 3229 to 28, paragraphs 20 to 27, and then also appendix 3261 to 64.

[00:17:40] Speaker 04:
So where does he say this 3229?

[00:17:42] Speaker 05:
So your honor if you look at 32 29 Actually, we can go to 32 64 your honor we can start there if you like 32 60 64 your honor paragraph 69

[00:18:10] Speaker 05:
So before paragraph 69, you'll see that our expert stepped through a lot of the prior art.

[00:18:16] Speaker 05:
And then in 69, he says, Dr. Colvin cites no evidence and performs no analysis suggesting that a person of foreigners killing the art would have believed that Barrera's 313 recharger would have been unsafe.

[00:18:28] Speaker 05:
that example that it would overheat beyond 41 degrees during transcutaneous recharging.

[00:18:33] Speaker 05:
It is my opinion that Barrios 313 does not disclose or suggest that its external recharger would overheat during transcutaneous recharging, nor does any evidence in the record, and without such evidence a person of ordered skill

[00:18:46] Speaker 05:
would not have been motivated to include a temperature sensor in Barrera's 313 recharger to control his temperature.

[00:18:52] Speaker 05:
And of course, this was just his conclusion paragraph, Judge Dyke.

[00:18:55] Speaker 05:
If you look at the preceding paragraphs, he steps through it very, very carefully.

[00:18:58] Speaker 05:
And then the other paragraph that I'll give you, and of course, paragraph 70 also, if you look, he says, to the contrary, it is my opinion that by acknowledging that temperature during recharging

[00:19:07] Speaker 05:
can be a problem, but not disclosing controlling the temperature on the implanted device.

[00:19:11] Speaker 05:
Borealis 313 makes clear that its external recharger is not expected to overheat.

[00:19:17] Speaker 01:
Am I right that the next four or five or six pages is Dr. Haller addressing why Taylor is a materially different device?

[00:19:30] Speaker 05:
That's absolutely right, Judge Toronto.

[00:19:32] Speaker 05:
And we believe that further supports the board's conclusion as to no motivation to combine.

[00:19:38] Speaker 01:
And that's the point on which I think you said the board didn't get into that issue.

[00:19:45] Speaker 05:
That's correct, Judge Toronto.

[00:19:46] Speaker 05:
That was our third argument.

[00:19:47] Speaker 05:
We made three arguments why Medtronic wins in this case.

[00:19:50] Speaker 05:
The board adopted the first two, and it didn't reach the third one.

[00:19:55] Speaker 05:
But of course, that's available to this court.

[00:19:57] Speaker 05:
It can look at that evidence and affirm, certainly on that basis as well.

[00:20:01] Speaker 01:
But I think here, the issue is exactly... I gather what Matsuki came in only on reply, is that true also of Carbonaro, or did Carbonaro come in earlier?

[00:20:15] Speaker 05:
So Carbonaro did come in earlier.

[00:20:17] Speaker 05:
Matsuki did come in on reply.

[00:20:19] Speaker 05:
Judge Tronno, there was no...

[00:20:21] Speaker 01:
working in chronological order.

[00:20:24] Speaker 01:
Where does Haller discuss target hours?

[00:20:27] Speaker 05:
Sure, Your Honor.

[00:20:28] Speaker 05:
And I was actually going to get to that.

[00:20:29] Speaker 05:
So I can give you a site for that if you like.

[00:20:32] Speaker 05:
And we can actually go through it.

[00:20:33] Speaker 05:
And the board, again, in our mind, adopted what our expert had said.

[00:20:37] Speaker 05:
So if you go to appendix 32-43 to 32-45, it's paragraphs 35 to 37.

[00:20:48] Speaker 05:
So if you look at those paragraphs, you will see that Dr. Actually, I apologize, Your Honor.

[00:20:55] Speaker 05:
Let me just make sure I have the right side here.

[00:21:05] Speaker 05:
Right, so if you look at 35-year-old Ronald, he addresses Carbonaro in that paragraph.

[00:21:11] Speaker 05:
He notes that Carbonaro, which was another advanced bionics device, is a fundamentally different system than the one disclosed in Barreras 313 and the 112 patent.

[00:21:22] Speaker 05:
Carbonaro's recharger was designed to be used with a deeply implanted stimulator.

[00:21:27] Speaker 05:
where the implanted device was positioned at a depth of 12 to 15 centimeters in the body with up to 30 degree off axis misalignment.

[00:21:35] Speaker 05:
So there he addresses Carbonaro.

[00:21:37] Speaker 05:
And he goes on, of course, in paragraph 36.

[00:21:40] Speaker 05:
He does that in paragraph 37.

[00:21:42] Speaker 05:
So again, appendix 3243 to 3245.

[00:21:44] Speaker 01:
And just finally, I guess my notes were suggesting that Mr. Powers said Taylor, Matsuki, and Carbonaro were the evidence

[00:21:57] Speaker 01:
uh... about that question uh... risk of overheating and i guess we have our dressing taylor carbonado uh... we don't have him addressing that's the case

[00:22:10] Speaker 05:
That is correct, Your Honor, and neither did their expert.

[00:22:13] Speaker 05:
They did not bring in a new reply declaration from their expert.

[00:22:17] Speaker 01:
So it's just lawyers arguing about Matsuki at this point.

[00:22:21] Speaker 05:
You are absolutely right, Your Honor, and which is why the board looked at the arguments and at Appendix 29 to 30, going back to Judge Dyke, some of the passages you pointed out.

[00:22:30] Speaker 05:
The board made factual findings based on what was presented to it, and we believe that those are entitled to

[00:22:36] Speaker 05:
substantial evidence.

[00:22:38] Speaker 01:
And I think Mr. Powers made a reference to the point made by the board at appendix page 29 that Matsuki teaches overheating being a concern for a transmitter charging a device implanted just below the skin and it does

[00:23:05] Speaker 01:
I think Mr. Bowers is saying that what the board meant there was that the only overheating device of the two is the one underneath the skin, not the one above.

[00:23:18] Speaker 01:
Can you clarify that?

[00:23:20] Speaker 05:
Sure, Your Honor.

[00:23:21] Speaker 05:
So I think what was happening here is they pointed to Matsuki as disclosing that this was a study that showed perhaps that the coils and the implant are heated.

[00:23:31] Speaker 05:
If you look at Matsuki, that's perhaps one way you could read it.

[00:23:35] Speaker 05:
And I think what the board did here was it said, well, fine, even if you look at Matsuki, this is like a computer simulation.

[00:23:41] Speaker 05:
It's not like the Barreros 313 recharger that we have here, which is, again, the key question here to Toronto and for the court and for the board was whether one of skill in the art

[00:23:50] Speaker 05:
would have been motivated to modify the Barreras 313 recharger to put in the temperature sensor from Taylor.

[00:23:57] Speaker 05:
And I think when the board looked at Matsuki, they said, well, this is not, in our minds, really relevant to that question.

[00:24:03] Speaker 05:
And that's why the board made the fashion findings.

[00:24:05] Speaker 04:
Why is it, as a computer simulation, what would happen with coils that are contained in the transmitter of the Barreras?

[00:24:15] Speaker 04:
Why isn't that some evidence that you have a risk?

[00:24:20] Speaker 05:
Sure.

[00:24:22] Speaker 05:
Certainly, Your Honor, I think what perhaps this teaches us that there is heating of the coils, perhaps more than even the device.

[00:24:30] Speaker 05:
But again, I think the key question here is whether you would take that, right, and then apply that to the Barreras 313 recharger when the evidence of record here shows that you would not.

[00:24:41] Speaker 05:
One of skill, we have uncontested testimony from our expert, right, that I pointed some of it I pointed you to.

[00:24:48] Speaker 05:
And it's certainly discussed in our briefs.

[00:24:50] Speaker 05:
where our expert, Dr. Heller, came in and said one of Skill in the Art would not have expected Barrera's 313 recharger to overheat.

[00:24:57] Speaker 05:
And this is all pure hindsight.

[00:24:59] Speaker 05:
They bring in a temperature sensor from a completely different device of Taylor and say, well, aha, here's the... And that's not enough for obviousness.

[00:25:07] Speaker 05:
They actually had to come in with reasons and motivations to combine.

[00:25:10] Speaker 05:
And the only motivation they presented was based on the safety standard, which the board rejected, based on the expert testimony of our expert and their expert.

[00:25:18] Speaker 05:
And that's entitled to substantial evidence review and deference here by this court.

[00:25:24] Speaker 05:
Unless your honors have any other questions, we would ask that the court affirm.

[00:25:30] Speaker 02:
Thank you, counsel.

[00:25:32] Speaker 02:
Mr. Powers has a couple of minutes for a bottle.

[00:25:37] Speaker 03:
Thank you, your honor.

[00:25:38] Speaker 03:
I want to focus on two points.

[00:25:40] Speaker 03:
The first point is, was there evidence in the record from which one of ordinary skill in the art should have been concerned about overheating from the coils in the charger?

[00:25:50] Speaker 03:
Matsuki answers that question, I think, conclusively.

[00:25:53] Speaker 03:
If you look at figures three and seven, it shows the curves going almost vertically at and exceeding 41 degrees after a very short period of time.

[00:26:03] Speaker 03:
That alone gives you sufficient evidence.

[00:26:05] Speaker 04:
Is there evidence that the Vararis coils are the same as

[00:26:10] Speaker 04:
coils that are being examined in Mitsuki?

[00:26:14] Speaker 03:
I don't think they're physically identical, but the method of operation is the same.

[00:26:18] Speaker 03:
They're all the same types of coils, both Carbonaro, Mitsuki, and Barreras, all the same.

[00:26:25] Speaker 03:
And so the idea that Mitsuki could be eliminated because it's a computer simulation seems to me irrelevant.

[00:26:33] Speaker 03:
It is showing you the heating resulting from those coils.

[00:26:37] Speaker 01:
and uh... uh...

[00:26:52] Speaker 01:
coils aren't the same touching the skin and there's some intervening surface maybe that surface does not get to 41 even if the interior coils and the recharger do.

[00:27:03] Speaker 03:
The answer is yes and of course that material if non-conductive would of course attenuate to some degree the heating coming from the coils but there is no evidence that the Brer's material would prevent overheating given the numbers in Matsuki.

[00:27:17] Speaker 01:
And then you have, in addition to that... I mean, this is a short scientific article introduced on Reply without expert commentary explaining how that article either would or would not translate to an inference for the different device that's in Berera.

[00:27:42] Speaker 01:
And I think for you to

[00:27:45] Speaker 01:
prevail on this, you need to have this evidence be so blindingly clear that the board had to attend, had to find otherwise based on that reply evidence.

[00:28:01] Speaker 03:
If the question is, is there evidence, which is the original question that was posed, is there evidence that the board ignored about a reason for what one's told in the art to be concerned?

[00:28:11] Speaker 03:
That's clear.

[00:28:12] Speaker 03:
It's clear in Matsuki.

[00:28:14] Speaker 03:
It's clear in Carbonaro.

[00:28:15] Speaker 03:
It's clear in Wang.

[00:28:16] Speaker 03:
That evidence is clear, and that provides the motivation to combine.

[00:28:20] Speaker 03:
And what the legal mistake the board made was ignoring that motivation and relying only on the eddy current motivation, which was irrelevant.

[00:28:29] Speaker 03:
The only other point I want to make is that their expert's statement that you heard counsel rely upon is pure ipsy dixit.

[00:28:36] Speaker 03:
When you look at those paragraphs, it is appendix 3229 to 3238.

[00:28:42] Speaker 03:
Those are the sites that the board made as paragraphs 20 to 27.

[00:28:49] Speaker 03:
Those paragraphs are pure Ipsy Dixit on the key point, which is not the any current point, but on the key point of whether one skilled in the art would not have been concerned about heating or overheating from a charger.

[00:29:03] Speaker 03:
Pure Ipsy Dixit.

[00:29:05] Speaker 02:
Mr. Powers, your time is up, and that is Ipsy Dixit also.

[00:29:11] Speaker 02:
This is submitted.

[00:29:11] Speaker 02:
Thank you.