[00:00:00] Speaker 02: The first one we're going to hear is Appeal Number 22-1136, C.R. [00:00:04] Speaker 02: Bard, Incorporated, versus Medical Components, Incorporated. [00:00:08] Speaker 02: Ms. [00:00:08] Speaker 02: Sullivan. [00:00:09] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:00:12] Speaker 00: Kathleen Sullivan for the Appellant Bard. [00:00:15] Speaker 00: The three Bard patents at issue here [00:00:17] Speaker 00: claim power injectable ports that are readily identifiable after implantation beneath the skin through radiographic markers, in the case of the 302 and 022 patents, or by a palpable structural feature, a concave surface, as claimed in the 615 patent. [00:00:37] Speaker 00: Now, the district court legally erred by holding the challenged patent claims here ineligible [00:00:46] Speaker 00: as printed matter. [00:00:47] Speaker 00: It was legal error. [00:00:49] Speaker 00: And I need point the court no further than its own prior decision in the 2020 case of Bard versus Angio Dynamics at 979 F3rd 1372 to show that this was legal error. [00:01:04] Speaker 00: And that case is controlling here. [00:01:06] Speaker 00: I'd like to start with why it's controlling. [00:01:08] Speaker 00: on Alice step one. [00:01:10] Speaker 02: Can we just start with a couple other questions? [00:01:13] Speaker 02: We're familiar with angiodynamics and we see the correspondence with the facts of this case for the 302 and 022 patent claims. [00:01:23] Speaker 02: Can you paint a picture for me in terms of what these radiographic markers look like on the claimed board assembly? [00:01:32] Speaker 00: Yes, your honor. [00:01:33] Speaker 00: They work with a housing support with a housing and a septum. [00:01:36] Speaker 00: so that the port can create a reservoir to allow the injection of fluid intravenously. [00:01:42] Speaker 00: So the port, what is claimed, is alphanumeric radiographic markers that are opaque to x-rays. [00:01:51] Speaker 00: So when the x-ray ports underneath the skin, you're going to inject the fluid into the port. [00:01:57] Speaker 02: Right. [00:01:57] Speaker 02: It's the message that I'm most interested in. [00:02:00] Speaker 00: Yes, Your Honor. [00:02:00] Speaker 02: What that looks like on the housing. [00:02:03] Speaker 00: alphanumeric symbols. [00:02:05] Speaker 00: I know an example is the letters CT. [00:02:08] Speaker 00: Yes, your honor. [00:02:09] Speaker 02: Right. [00:02:09] Speaker 02: So are they painted onto the housing? [00:02:13] Speaker 02: Is it some kind of, I don't know, brass plaque that's riveted onto the side of the housing? [00:02:21] Speaker 00: What does it look like? [00:02:23] Speaker 00: Your honor, the key in any embodiment, the key is it's opaque to an x-ray. [00:02:29] Speaker 00: So whether painted or etched or attached [00:02:33] Speaker 00: it's opaque to x-rays. [00:02:34] Speaker 00: So the point is the practitioner, so if you have a chemotherapy patient who's going under a CAT scan, many practitioners will work on the person in the course of the person's treatment. [00:02:46] Speaker 00: Any practitioner will see CT pop up because it's opaque to the x-ray. [00:02:50] Speaker 02: Right, but I'm just the inherent nature of radio-paint material. [00:02:57] Speaker 02: I'm just trying to understand [00:02:59] Speaker 02: Will it look like some kind of three-dimensional substance that's somehow attached to, embossed onto the side of the housing? [00:03:10] Speaker 00: It's on the bottom of the housing, Your Honor. [00:03:12] Speaker 00: And the point is, the CT will be visible. [00:03:15] Speaker 00: And it doesn't matter whether it's in two dimensions or three, because the minute the CT is observable through the x-ray, you know the port is power injectable. [00:03:24] Speaker 02: I'm trying to understand if this is a structural element or not. [00:03:27] Speaker 02: Should I be thinking? [00:03:29] Speaker 02: Yes. [00:03:29] Speaker 02: Of this message, African-American message, as a structural element? [00:03:36] Speaker 02: Or should I think of it more like what we understand traditionally to be printed matter, which is ink on a page written in words and numbers? [00:03:47] Speaker 00: Yes, Your Honor. [00:03:48] Speaker 00: It's absolutely a structural element. [00:03:50] Speaker 00: We don't dispute that the message conveyed is part of the patent. [00:03:55] Speaker 00: The patent enables a court [00:03:57] Speaker 00: who in effect say to the practitioner, hello, I'm power injectable, which is very important so you don't blow up the port in the patient's body and cause serious injury. [00:04:05] Speaker 00: We don't dispute that there's printed matter with respect to the message conveyed. [00:04:10] Speaker 00: What we do dispute is that the claims are directed solely to the message conveyed. [00:04:15] Speaker 00: They're directed to the combination of the message conveyed [00:04:19] Speaker 00: and the structural element, the radiographic markers that enable that message to be conveyed. [00:04:24] Speaker 00: And that's what makes this on all fours with the ALICE step one analysis in the court's prior decision in NGO Dunham. [00:04:30] Speaker 02: Let me ask you a different hypothetical. [00:04:32] Speaker 02: What if we had this very port assembly [00:04:36] Speaker 02: you took a pen and you scrawled CT on the bottom of the housing of that port assembly. [00:04:43] Speaker 00: Totally different, Your Honor. [00:04:44] Speaker 00: That would be printed matter. [00:04:46] Speaker 00: It would be printed matter. [00:04:47] Speaker 00: We don't dispute that pure labeling cases, a pure label, a pure stamp on the meat. [00:04:54] Speaker 03: Supposing the pen contained radio opaque material. [00:04:58] Speaker 00: Then it would be claimable, Your Honor, because then you're providing the means of conveying the message as part of the claim. [00:05:04] Speaker 02: But let's assume [00:05:06] Speaker 02: that standard ink and a standard pen happens to be radio opaque, then your [00:05:16] Speaker 02: On one hand, you're just writing CT on the side of a port. [00:05:21] Speaker 02: On the other hand, yes, you can see the letter CT when you do an x-ray of a patient. [00:05:29] Speaker 02: In that sense, I think we already agreed it's printed matter. [00:05:34] Speaker 02: So why wouldn't that fact pattern be a problem under the printed matter? [00:05:39] Speaker 00: Your Honor, that fact pattern would still not be a problem under 101. [00:05:43] Speaker 00: It might be a problem under 103. [00:05:46] Speaker 00: 103. [00:05:47] Speaker 02: Getting back to the angio dynamics, I know you want to get back to that. [00:05:54] Speaker 02: Our court, we made this distinction, this division between the information to be conveyed and then the means for conveying that information. [00:06:07] Speaker 02: And we said the radio opaque material or substance or element is the means for conveying the information. [00:06:14] Speaker 02: And that is OK. [00:06:15] Speaker 02: And that is an element that gets patentable weight. [00:06:17] Speaker 02: But the information to be conveyed does not. [00:06:20] Speaker 02: Correct, Your Honor. [00:06:22] Speaker 02: But in all our printed matter cases, we've never said, oh, the ink is the means for conveying the information. [00:06:30] Speaker 02: And so therefore, that will get patentable weight. [00:06:35] Speaker 02: But the information that is being conveyed by the ink does not get patentable weight. [00:06:40] Speaker 02: And so as you can see, that's why I am trying to explore with you what would happen if ink in a standard pen [00:06:50] Speaker 02: scrolled on to the bottom of the housing of a claimed port that happens to also be radio-opaque would not suffer from the same problems under the Printed Matter Doctrine. [00:07:00] Speaker 00: So, Your Honor, let me give two answers. [00:07:01] Speaker 02: We're just talking about patentable weight right now. [00:07:03] Speaker 02: We can get to 101 next. [00:07:05] Speaker 00: First, still would have patented weight to the extent it's functionally related to the substrate. [00:07:10] Speaker 00: Now, there might be a question about functional relationship. [00:07:13] Speaker 00: There's none we believe in our case. [00:07:15] Speaker 00: But, Your Honor, [00:07:17] Speaker 00: You might have a problem with the pen at one out of three if you talk about it as an obvious combination. [00:07:22] Speaker 00: But the second answer, Your Honor, and this is crucial here, the ink might be observable to the naked eye. [00:07:27] Speaker 00: We think ink plus printed matter on a label, like in AstraZeneca or a number of your prior labeling cases. [00:07:35] Speaker 00: Ink that's just observable to the human eye, you couldn't turn that into the means that takes you out of printed matter. [00:07:41] Speaker 00: But these are letters, alphanumeric characters, that are not visible to the naked eye. [00:07:46] Speaker 00: And the means here is the x-ray technology that enables them to be visible. [00:07:50] Speaker 00: And that is precisely the means that this court found in angiodynamics. [00:07:54] Speaker 03: In angiodynamics, though, the patent was a little different, wasn't it? [00:08:04] Speaker 03: You had two device patents and one methods patent. [00:08:11] Speaker 00: Correct, Your Honor. [00:08:12] Speaker 00: And we only have device patents here. [00:08:16] Speaker 03: And it seems to me that the analysis in angio-dynamics goes off on the methods patent. [00:08:23] Speaker 00: It does not, Your Honor. [00:08:23] Speaker 00: Angio-dynamics with respect goes off with respect to the two apparatus patents on precisely the reasoning we urge the court to adopt here. [00:08:31] Speaker 00: And Your Honor, if I could just point, Your Honor, to the 417 patent claim one in the angio-dynamics case, it claimed a radiographic marker perceivable via x-ray. [00:08:41] Speaker 00: That's, in Haik Vrba, the same as our claims, which claim a radiopac alphanumeric message observable through interaction with an x-ray. [00:08:49] Speaker 03: So how is that patentably different? [00:08:52] Speaker 00: How is it patentably different, Your Honor? [00:08:54] Speaker 00: Well, it's the angiodynamics. [00:09:00] Speaker 00: We've added alphanumeric message. [00:09:03] Speaker 00: I want to point out a very important point, Your Honor. [00:09:05] Speaker 00: Remember, our patents that are here also came up to the course. [00:09:10] Speaker 00: from the PTAB, and this court reversed. [00:09:13] Speaker 00: And they went back to the PTAB. [00:09:14] Speaker 00: And I think this is a very important point about our patents. [00:09:17] Speaker 00: When it went back to the PTAB, Your Honor, they issued certificates of re-exam as to all the relevant claims of all three of our patents. [00:09:26] Speaker 00: The 302, the 022, the 615 have all been found patentable, Your Honor. [00:09:30] Speaker 00: So there's a prior ruling, Judge Wallach, that our patent claims here are patentable. [00:09:36] Speaker 00: When it came up to this court, the court reversed the PTAB. [00:09:38] Speaker 00: It went back. [00:09:39] Speaker 00: And I could respectfully review it. [00:09:40] Speaker 02: Did printed matter come up in that? [00:09:41] Speaker 02: Sorry, Your Honor? [00:09:41] Speaker 02: Did printed matter come up in that? [00:09:43] Speaker 00: It did not, Your Honor. [00:09:44] Speaker 00: It did not. [00:09:45] Speaker 00: And this court reserved on that question. [00:09:46] Speaker 00: But the point I'm making here is Judge Wallach asked me how they were patentably different. [00:09:52] Speaker 00: The PTAB has already found patentability. [00:09:54] Speaker 00: We give you the opinion there in the blue brief at page 11, footnote 1. [00:09:59] Speaker 00: So I was just trying to take care of Judge Wallach's question, Judge Chan, to come back to your question. [00:10:04] Speaker 00: Our key point here is that means, when the means is the claim, [00:10:08] Speaker 00: And the means is part of what makes the patent a contribution here. [00:10:12] Speaker 00: If I could respectfully, Your Honor. [00:10:16] Speaker 00: I believe Your Honors have already found, if you look at page 1384 of the NGO Dynamics decision, that it was an addition to knowledge. [00:10:26] Speaker 00: That it was an addition to knowledge. [00:10:28] Speaker 00: What made it practically useful here was that these letters that are etched on the housing [00:10:36] Speaker 00: were perceptible by x-ray. [00:10:38] Speaker 00: That is an addition to knowledge, because it makes it readily identifiable. [00:10:41] Speaker 02: You just said etched. [00:10:42] Speaker 02: And again, I'm struggling with figuring out how to understand in my mind what these radiographic messages look like. [00:10:54] Speaker 00: Your Honor, in the embodiment in the figures in the patent, it shows them as inscribed. [00:11:01] Speaker 00: I don't think it matters whether the embodiment is [00:11:04] Speaker 00: painted, etched, inscribed. [00:11:07] Speaker 00: The point is it's opaque to an x-ray in any means, in any variation on that means it's opaque to the x-ray. [00:11:15] Speaker 00: But Your Honor, if I could just point to what I was quoting from page 1384, what this court said makes the patent particularly useful is that the radiographic [00:11:26] Speaker 00: marker in the claimed invention allows the implanted device to be readily and reliably identified by x-ray as used during a CAT scan. [00:11:36] Speaker 00: So, Your Honor, what is the means here is absolutely part of what the invention is about. [00:11:43] Speaker 00: We think we went also at step two because that is an inventive concept. [00:11:48] Speaker 00: There were no [00:11:49] Speaker 00: power injectable port. [00:11:50] Speaker 01: Let me just ask you this, and I know we're bound by andeodynamics and it looked at it under the Alice rubric, but why is the Alice rubric relevant to a printed matter case? [00:12:01] Speaker 01: Alice has been used to talk about abstract ideas and laws of nature and things like that. [00:12:07] Speaker 01: Printed matter has always been used in 102 and 103, not 101. [00:12:13] Speaker 01: So it baffles me why we're talking about [00:12:16] Speaker 01: printed matter as an implicit exception to patentability under 101. [00:12:22] Speaker 01: And the analysis just doesn't seem to fit to me. [00:12:26] Speaker 00: Well, Your Honor, that [00:12:29] Speaker 00: issue was raised and decided by angio-dynamics. [00:12:32] Speaker 01: Well, I know, but let's just assume, I'm just interested to hear what you have to say about that. [00:12:36] Speaker 01: Let's just assume angio-dynamics does not exist, and we were the first panel trying to decide whether to apply Alice to print and merit. [00:12:44] Speaker 00: Yes, absolutely, Your Honor. [00:12:45] Speaker 01: What's the rationale for applying it? [00:12:47] Speaker 01: It seems like then it turns every patent inquiry into this 101 thing is, what's the inventive concept? [00:12:56] Speaker 01: and then apply to Alice's two-step thing. [00:12:58] Speaker 01: But that's not what Alice and that lot of cases is for. [00:13:02] Speaker 01: They've been generally confined to abstract ideas and laws of nature, haven't they? [00:13:07] Speaker 00: Your Honor, I think that if I could just go back to Enfish, the connection is through the concept of reading the patent claim as a whole, which, of course, was this court's very important piece of the Enfish holding. [00:13:22] Speaker 00: to read it as a whole. [00:13:23] Speaker 00: I think in a way angiodynamics just applies ENFISH because it says read the patent as a whole. [00:13:28] Speaker 00: All right, it's got some printed matter. [00:13:29] Speaker 00: We accept that the message. [00:13:32] Speaker 00: high power injectable that's coming from the port. [00:13:36] Speaker 00: We agree that message might fit the old definition of printed matter in the 102-103 cases. [00:13:41] Speaker 00: But the key thing angiodynamics does, just like ENFISH, it says read the claim as a whole. [00:13:47] Speaker 00: And as a whole, this is claiming a means, a structure, a port, radiographic markers that are structures. [00:13:53] Speaker 00: And they're not perceptible. [00:13:55] Speaker 01: You know, I get that. [00:13:56] Speaker 01: And that's what angio-dynamics says in terms of it. [00:13:59] Speaker 01: But you didn't really answer my question about why we're even looking at this in terms of 101. [00:14:02] Speaker 01: And I'm sure you've read Infish more recently than I have. [00:14:06] Speaker 01: But I don't recall anything about credit matter. [00:14:09] Speaker 01: In that case, it was an abstract idea case. [00:14:11] Speaker 00: Absolutely, Your Honor. [00:14:12] Speaker 00: And can I also just mention that in angio-dynamics itself, angio-dynamics raised a number of abstract ideas, arguments based on secured mail and other cases in this court. [00:14:24] Speaker 00: squarely rejected them. [00:14:26] Speaker 00: There was angiodynamics considered but rejected any abstract idea analysis. [00:14:30] Speaker 00: I think, Your Honor, that, you know, there's a serious question whether printed matter ever should have been incorporated into the 101 analysis, but now that it's law of the circuit, I think it is reconcilable with your, Alice, precedence because it's, it's a variation on NFISH. [00:14:45] Speaker 00: Look at the claim as a whole. [00:14:46] Speaker 00: When you look at the claim as a whole here, [00:14:48] Speaker 00: It claims structures means not just the message conveyed. [00:14:53] Speaker 00: And that's all you need to reverse at Alice Step 1. [00:14:55] Speaker 00: Can I just ask, we've got this litigation. [00:14:58] Speaker 02: We've got the litigation with angiodynamics. [00:15:01] Speaker 02: And then we have yet a third litigation with Judge Nielsen. [00:15:06] Speaker 00: Correct, Your Honor. [00:15:06] Speaker 00: And everything's been stayed pending the court's resolution of this matter. [00:15:11] Speaker 00: And are all those patents related patents? [00:15:13] Speaker 00: Yes, Your Honor. [00:15:14] Speaker 02: So we have a proliferation of patent claims about radiographic messages on the side of an old, well-known port assembly? [00:15:23] Speaker 00: Oh, Your Honor, just to recall. [00:15:26] Speaker 02: And as you just helpfully showed us, all the claims have no material difference among them? [00:15:31] Speaker 00: Your Honor, I want to be sure I reserve time for rebuttal. [00:15:34] Speaker 00: May I answer your question? [00:15:35] Speaker 00: We will have rebuttal time. [00:15:36] Speaker 00: All right. [00:15:36] Speaker 00: Thank you, Your Honor. [00:15:37] Speaker 00: Yes. [00:15:37] Speaker 00: Look, Bard. [00:15:40] Speaker 00: invented power injectable ports, it realized that they had to be identifiable so you didn't harm patients. [00:15:46] Speaker 00: You have to be able to identify in the moment that they're power injectable. [00:15:50] Speaker 00: That's what the FDA wanted. [00:15:52] Speaker 00: We were the first to get FDA approval. [00:15:53] Speaker 00: The patents are related, Your Honor. [00:15:55] Speaker 00: But we think you can simply dispose of this case. [00:15:58] Speaker 00: It's an easy reversal after angiodynamics because the patents as in angiodynamics claim means of conveying the information [00:16:08] Speaker 00: And it's not your pen case because they're not observable to the human eye. [00:16:12] Speaker 00: You need an x-ray or you need palpation. [00:16:14] Speaker 02: When you say it's not observable to the human eye, you don't think the CT on the bottom of the housing of the port assembly is seeable? [00:16:23] Speaker 02: Absolutely, Your Honor. [00:16:24] Speaker 02: But I'm sorry, Your Honor. [00:16:25] Speaker 02: I don't understand what you mean by it's not seeable. [00:16:27] Speaker 00: After implantation, Your Honor. [00:16:29] Speaker 00: After implantation, which is claimed. [00:16:31] Speaker 00: So the key thing here is we're not talking about letters on the outside of a box. [00:16:36] Speaker 00: We're not talking about use instructions in a prescription drug answer. [00:16:39] Speaker 03: So supposing your method, Pat, started with the words, take a scalpel. [00:16:44] Speaker 03: But you don't need the x-ray. [00:16:47] Speaker 03: Just cut it open and read what's on the bottom. [00:16:49] Speaker 00: Your Honor, the contribution to knowledge here was to enable ports keep patients from being turned into human pin cushions when they go through multiple injections. [00:17:00] Speaker 00: Anyone who knows people who have gone through chemotherapy knows that. [00:17:04] Speaker 00: And this enables [00:17:05] Speaker 00: that subcutaneously inserted port that protects the patient to be reliably identified as power injectable that is capable of withstanding injections at a high rate of flow, mechanically assisted, that won't shatter the port and harm the patient. [00:17:21] Speaker 00: So, Your Honor, with respect, I don't think that the application that means cutting the patient up. [00:17:27] Speaker 03: But the surgeon could read that marking on the port. [00:17:33] Speaker 00: Your Honor, these are interesting [00:17:35] Speaker 00: questions, but Antiodynamics, unless this panel were to try to reverse the prior panel decision of the court, decided this question. [00:17:43] Speaker 00: There's no material difference between the apparatus here. [00:17:45] Speaker 03: We could distinguish it, or we could ask for an in-bang. [00:17:51] Speaker 00: Well, Your Honor, I don't think there's a way to distinguish it because, and I want to [00:17:56] Speaker 00: If I could highlight one feature of the district court's opinion, I want to focus on the step one legal error. [00:18:02] Speaker 00: The step one legal error is at appendix page 17, where the court said, I am going to read the means as well as the message as part of the printed matter. [00:18:12] Speaker 00: That's directly contrary to angiodynamics. [00:18:15] Speaker 00: And then at the appendix page 28, footnote 138, the district court acknowledges and admits that he's bound by this court's precedent [00:18:23] Speaker 00: And his decision is in tension with this court's precedent, but he nonetheless is going to distinguish it, because he said there are different records in the case. [00:18:31] Speaker 00: But your honor, that's obvious legal error, because the only record before you at Alice Step 1 is the claims. [00:18:38] Speaker 00: The claims which you and you review the interpretation de novo. [00:18:41] Speaker 02: My last question is, was it already known in the art to apply radio opaque markers to other medical devices? [00:18:51] Speaker 02: no it was not your honor and again angio-dispute that you so bard was the first one oh i'm sorry your honor bard i'm talking about any medical device absolutely it was known i'm sorry your honor it was known in the art with respect to other maybe radiographic markers on other medical devices yes what can you just explain to me why it wasn't obvious to just go ahead and apply these well-known super basic radiographic markers to the well-known super basic [00:19:20] Speaker 00: Well, Your Honor, first, obviousness is down the line. [00:19:24] Speaker 02: We haven't done 102 and 103 yet. [00:19:28] Speaker 00: Here's why, Your Honor. [00:19:30] Speaker 00: And again, this was decided by Angio Dynamics. [00:19:33] Speaker 00: Remember, Angio Dynamics has the alternative step to holding [00:19:36] Speaker 00: all the same prior art with respect to radiographic markers in medical devices, defibrillators, pacemakers, surgical swabs and sponges. [00:19:45] Speaker 00: Yes, of course, radiographic markers existed in other medical devices, but there was no port prior art in... There's no 102. [00:19:54] Speaker 00: I understand that. [00:19:55] Speaker 00: Yeah. [00:19:55] Speaker 00: There's no port prior art. [00:19:57] Speaker 00: Yeah. [00:19:57] Speaker 00: And in fact, the port one decision, remember the PTAB found patentability for all three of the claims here, [00:20:05] Speaker 00: We cite that in the blue brief at page 11, footnote 1, if you want to see the P tab. [00:20:10] Speaker 00: We got re-examination certificates. [00:20:12] Speaker 00: There's no question. [00:20:13] Speaker 00: And if I could just sum up my answer to your question in one phrase. [00:20:17] Speaker 00: Ordered combination of the elements. [00:20:20] Speaker 00: So ordered combination of the elements, a phrase that goes all the way back to Mayo. [00:20:25] Speaker 00: Ordered combination of the elements is what you looked at at step two. [00:20:28] Speaker 00: And the ordered combination of the elements here wants you to look at ports, not defibrillators. [00:20:34] Speaker 00: And it wants you to look at radiographic markers to identify subcutaneously implanted ports and not other kinds of devices. [00:20:41] Speaker 00: And there was no port prior art. [00:20:42] Speaker 00: This court had before it the patents that had radiographic markers to show flow rate, radiographic markers to show whether the port was upside down. [00:20:53] Speaker 00: But those are not ordered combination of the elements here. [00:20:56] Speaker 00: Power injectability is key to that. [00:20:59] Speaker 00: And so this court could [00:21:00] Speaker 00: Affirm on step two, under angiodynamics, no material difference in the record. [00:21:04] Speaker 00: Judge Wallach, you can't distinguish the prior art record here from the one before the court in angiodynamics. [00:21:09] Speaker 00: There's nothing new that's court specific. [00:21:12] Speaker 00: But Your Honor, you don't need to do that. [00:21:15] Speaker 00: The court can reverse simply at Alice, step one, under angiodynamics. [00:21:18] Speaker 00: Thank you very much. [00:21:19] Speaker 02: Thank you. [00:21:20] Speaker 02: We'll reserve your rebuttal time. [00:21:21] Speaker 02: Thank you, Your Honor. [00:21:22] Speaker 02: Let's hear from the other side. [00:21:28] Speaker 02: 20 minutes. [00:21:30] Speaker 02: You don't need to use it all, but you'll have 20 minutes. [00:21:33] Speaker 04: Thank you, Your Honor. [00:21:35] Speaker 04: Thank you, Your Honor. [00:21:36] Speaker 04: It's a pleasure to be before you. [00:21:38] Speaker 04: May it please the Court. [00:21:40] Speaker 04: And I will reserve one minute of time for the rebuttal on the cross. [00:21:48] Speaker 04: The patents in this case are not to a power injectable port. [00:21:53] Speaker 02: I'm sorry. [00:21:53] Speaker 02: Could you just start right away with angiodynamics and complain why this is not a carbon copy of the angiodynamics case? [00:22:04] Speaker 02: Those claims, that reasoning, why aren't our hands tied here? [00:22:10] Speaker 04: Well, the patents in the angiodynamics case claim specifically to a power injectable for providing the power injectable measure. [00:22:20] Speaker 04: 35 psi flow rates It's a it all respects its traditional apparatus claim structure We have a traditional apparatus claim here, right? [00:22:31] Speaker 02: It does claim a port assembly in port one We our court construed these claims in front of us today as being a power injectable port assembly So I don't think [00:22:44] Speaker 02: Your identification of the other claims in angiodynamics as actually referring to a power injectable port assembly really makes any difference? [00:22:52] Speaker 04: Well, in Chief Judge Shelby's analysis, he considered that very carefully. [00:22:57] Speaker 04: And it clearly is directed to a power injectable port functionality. [00:23:05] Speaker 04: But it speaks to the message. [00:23:09] Speaker 04: It's information that is being provided [00:23:12] Speaker 04: by the patents in our case, different family, different family line. [00:23:17] Speaker 04: It provides three specific kinds of things. [00:23:21] Speaker 04: In 302, they refer to it as the radiographic alphanumeric characters. [00:23:26] Speaker 04: It's not a structure. [00:23:28] Speaker 04: Radiopaque alphanumeric message. [00:23:32] Speaker 04: I don't know what structure a message can be. [00:23:36] Speaker 04: A radiopaque identification feature, principally used by shape. [00:23:42] Speaker 04: These things are the printed matter. [00:23:46] Speaker 04: Printed matter, the suggestion that you can separate the matter from the printing, would disarray, as the court said in NGO, the doctrine. [00:23:57] Speaker 04: Impossibly. [00:23:58] Speaker 04: Are you saying we said that? [00:24:00] Speaker 04: No. [00:24:01] Speaker 02: No, we didn't. [00:24:02] Speaker 02: It's the opposite of that. [00:24:04] Speaker 02: This court, in angiodynamics, that there's a distinction between the information to be conveyed by these radiographic alphanumeric messages and the means by which you convey the information. [00:24:17] Speaker 02: And here, in angiodynamics, [00:24:20] Speaker 02: Just take it as a given that we held that that was sufficient to be directed to something that is not an abstract idea, that is not printed matter. [00:24:31] Speaker 02: Because we split that claim limitation into, number one, the information being conveyed, and two, the means for conveying that information. [00:24:42] Speaker 04: OK. [00:24:43] Speaker 04: And Chief Judge Shelby also addressed that. [00:24:46] Speaker 04: And he harmonized. [00:24:47] Speaker 04: that language to mean that, according to the NGO, the court said, the conclusion that near identification of a device's own functionality is sufficient to constitute new functionality for purposes of the printed matter doctrine [00:25:13] Speaker 04: would eviscerate our established case law that simply added new instructions to a known product, does not create a functional relationship. [00:25:24] Speaker 04: So here, here you have the radiopaque. [00:25:29] Speaker 04: In our case, it's radiopaque alphanumeric characters. [00:25:33] Speaker 04: What is their relationship to the substrate? [00:25:36] Speaker 04: There is none. [00:25:38] Speaker 04: In order to have a relationship, it has to affect the primary purpose of that claim, which is power injection. [00:25:46] Speaker 04: Radiographic characters are a property, so you can see it under x-ray. [00:25:52] Speaker 04: It makes things visible under x-ray. [00:25:56] Speaker 04: That's all it is. [00:25:57] Speaker 04: Density of material, high electron compression [00:26:03] Speaker 04: where you have a lot of density to take on. [00:26:06] Speaker 02: And we said in angiodynamics that's good enough to say that the claims passed must be under 101, and we reversed. [00:26:16] Speaker 04: But I think we're having a disconnect perhaps in this conversation. [00:26:20] Speaker 04: I think we are. [00:26:22] Speaker 04: The radiographic marker itself is not a functional element of the port. [00:26:31] Speaker 04: It provides information about the port. [00:26:34] Speaker 04: It provides old information about the port. [00:26:36] Speaker 04: It's the only means in which you can provide that. [00:26:38] Speaker 01: I'm a little confused. [00:26:39] Speaker 01: I mean, the radiographic marker is structural. [00:26:44] Speaker 01: You have to either etch it or do something to make it visible, right? [00:26:48] Speaker 04: No. [00:26:50] Speaker 01: Well then, where does it come from? [00:26:51] Speaker 01: It doesn't just magically appear. [00:26:53] Speaker 01: Somebody does something to the port to put a radiographic marker on there. [00:26:58] Speaker 01: The information it conveys may be printed matter, but the radiographic marker itself is structural. [00:27:05] Speaker 04: It is, but it's not structurally related to a substrate. [00:27:08] Speaker 04: The substrate in this context is power injectable port. [00:27:12] Speaker 04: It doesn't make the port function any differently. [00:27:15] Speaker 04: If you remove it, it's the same port. [00:27:18] Speaker 04: The purpose of the port is to provide higher volume of material through the port, higher pressures and flow rates. [00:27:28] Speaker 04: That radiographic substrate has no impact on that. [00:27:32] Speaker 04: It has nothing to do with it. [00:27:34] Speaker 04: It simply says, you can use this device for that. [00:27:37] Speaker 02: Do you have a copy of that Android Dynamics opinion? [00:27:40] Speaker 02: I do. [00:27:41] Speaker 02: Can you go to 1384? [00:27:42] Speaker 02: 1384. [00:27:42] Speaker 02: Yes, sir. [00:27:50] Speaker 02: A little bit down from the top, there's a sentence that says, when each claim is read as a whole, [00:27:57] Speaker 04: And each claim is right in the hole. [00:27:59] Speaker 02: Yes. [00:27:59] Speaker 02: The focus of the claimed advance is not solely on the content of the information conveyed, but also on the means by which the information is conveyed. [00:28:07] Speaker 02: Yes, that's correct. [00:28:08] Speaker 02: And then went further to say these radiographic markers therefore make the claims patent eligible. [00:28:16] Speaker 02: So what do you interpret the meaning of this one sentence I just quoted as referring to? [00:28:26] Speaker 04: This would be correct if, as an exception that was noted, that if it's related to the substrate, the substrate in this context, just because it's affixed to it isn't enough. [00:28:41] Speaker 04: It has to be functionally related. [00:28:44] Speaker 04: It's not structurally related. [00:28:46] Speaker 04: It's functionally related. [00:28:48] Speaker 04: It has no functional relationship to the port. [00:28:52] Speaker 04: The port provides fluids at a higher rate [00:28:55] Speaker 04: of volume and pressure. [00:28:57] Speaker 02: Do you think we required that in the angiodynamics opinion? [00:29:01] Speaker 02: When we found those claims to be patent eligible? [00:29:03] Speaker 04: I think chief judge Shelby in his opinion. [00:29:06] Speaker 02: I'm asking you about our governing federal circuit case law. [00:29:12] Speaker 04: I think the case law, it has to be read in the context of all of your prior decisions and in your prior decisions. [00:29:23] Speaker 02: Andrew Dynamics is pretty much the closest, most relevant case to the present case. [00:29:29] Speaker 02: Would you not agree? [00:29:30] Speaker 04: I would, but I would say it does not reverse the other cases. [00:29:34] Speaker 04: It can't. [00:29:35] Speaker 04: You have to harmonize them, don't you? [00:29:37] Speaker 04: I think you have to look at what the intent was. [00:29:41] Speaker 04: Now, let me take a step back. [00:29:43] Speaker 01: I don't understand it. [00:29:44] Speaker 01: I mean, this case is talking about the exact same things, and the other cases aren't. [00:29:49] Speaker 01: So are you suggesting that somehow this case is inconsistent with our prior precedent, and we should ignore it? [00:29:54] Speaker 04: No, we should ignore it. [00:29:55] Speaker 01: I think it creates the impression that it's inconsistent because... I mean, frankly, I think the whole analytical framework in angiodynamics is nuts using this printed matter doctrine in [00:30:08] Speaker 01: an Alice inquiry. [00:30:09] Speaker 01: I don't understand how we got there. [00:30:10] Speaker 01: Printed Matter has always been in 102, 103 cases. [00:30:14] Speaker 01: So if you think this case is wrong, then I would just disregard it altogether. [00:30:18] Speaker 01: But clearly, we're bound by this. [00:30:21] Speaker 01: And this is talking about port assemblies. [00:30:23] Speaker 01: I don't know where we're talking about anything else when this is the case that's on point and it is binding. [00:30:28] Speaker 01: And it clearly found these kind of structures patent eligible. [00:30:33] Speaker 01: I don't get where you're saying that the [00:30:35] Speaker 01: The radiopath, whatever it is, has to be part of the substrate. [00:30:40] Speaker 01: Where in our case law does it say that, particularly in this angio case? [00:30:45] Speaker 04: Well, as was stated, in the printed matter doctrine, if the printed matter is the only thing that remains to support patentability, it's ineligible under that basis. [00:31:05] Speaker 01: Yeah, that's what we said in this case. [00:31:07] Speaker 01: Most of the time, maybe there's another straight case out there on that. [00:31:11] Speaker 01: Almost all the times I've seen print and matter, it hasn't had anything to do with eligibility. [00:31:15] Speaker 01: It's had to do with either anticipation or obviousness. [00:31:19] Speaker 01: And you can't distinguish a prior reference by just adding an instruction manual. [00:31:25] Speaker 01: That doesn't get you out of anticipation by saying, oh, here's an instruction manual on how to use the patented bike. [00:31:31] Speaker 01: You don't get it. [00:31:32] Speaker 04: Right. [00:31:33] Speaker 04: I understand that. [00:31:35] Speaker 04: May I address your point on the printed manadoxin and why it was said to be under 101. [00:31:45] Speaker 04: The Alice doctrine says that if you find that the claims advance, if you will, is an abstract idea. [00:32:03] Speaker 01: it is within the confines of alice and i think what happened is they found that the printed matter itself is an abstract provides information and because i want to understand that's what we did it it just seems bizarre to me because we never use printed matter that way but we're stuck with it you're stuck with it too you know you don't get to read it a different way based on all these other old printed matter cases that were used for a different purpose [00:32:31] Speaker 01: And so what they looked at in angiomax that we're talking about is the whole thing and said, this is directed to a port with all these different features. [00:32:40] Speaker 01: And that's enough to make it patent eligible, even if a small portion of it, the printed matter is ineligible. [00:32:47] Speaker 01: Why isn't this case on all floors with that? [00:32:50] Speaker 04: Well, printed matter itself, it is printed matter. [00:32:54] Speaker 04: The printed matter in this case is visible on the x-ray. [00:32:57] Speaker 01: The claims here aren't just to the printed matter, though. [00:33:00] Speaker 01: Every single one of them is to a port assembly, aren't they? [00:33:04] Speaker 04: No. [00:33:05] Speaker 04: In this instance, in our case specifically, these claims, we should look at a claim, is directed to information from the claim. [00:33:15] Speaker 04: Looking at claim one from this patent. [00:33:19] Speaker 04: I learned from which patent? [00:33:20] Speaker 04: I'm sorry. [00:33:21] Speaker 01: No. [00:33:22] Speaker 01: OK, so you're going to read this one. [00:33:24] Speaker 01: The claim itself says it's to a port assembly. [00:33:28] Speaker 01: What you're saying is, [00:33:30] Speaker 01: that the claimed advance here is information. [00:33:35] Speaker 03: Yes. [00:33:36] Speaker 01: But that's the same thing that was in Angiomax. [00:33:38] Speaker 01: And we said, you can't just look at the claimed advance. [00:33:40] Speaker 01: You have to look at the thing as an order combination under ALICE, and it's to a port assembly. [00:33:47] Speaker 01: So it's eligible. [00:33:48] Speaker 04: When you look at the claim as a whole, everything in that claim is known in prior. [00:33:56] Speaker 01: So the only thing that makes it obvious, it doesn't make it ineligible. [00:34:01] Speaker 04: In Angio, it said that if you look at the claimed advance, what is that claimed advance? [00:34:09] Speaker 04: The claimed advance is the provision of information by this element that is not related to the substrate. [00:34:18] Speaker 04: It's not related to the forward assembly. [00:34:21] Speaker 04: It's related to the provision of information. [00:34:24] Speaker 04: The rate of opaque material has nothing to do with the port. [00:34:32] Speaker 04: You take it out, it runs the same. [00:34:34] Speaker 04: You put it back, it runs the same. [00:34:36] Speaker 04: It's not structurally related. [00:34:39] Speaker 04: It's to the substrate. [00:34:41] Speaker 01: Wasn't that true in the prior decision? [00:34:43] Speaker 04: Which prior decision? [00:34:45] Speaker 01: We're talking about angiodynamics. [00:34:48] Speaker 04: Yes, that's why they said the print didn't matter doctrine. [00:34:52] Speaker 01: But yet we still held it eligible. [00:34:54] Speaker 01: This is what I don't understand is it's the exact same stuff. [00:34:59] Speaker 02: Can you walk us through why the angio-dynamics claim is patent eligible but these claims are somehow different from those claims and therefore ineligible? [00:35:10] Speaker 02: I'll just let you know right now, I don't see any difference. [00:35:16] Speaker 04: In the case of the, in the angio-dynamics case, the call of the claim, the claim focuses on the [00:35:30] Speaker 04: power injectable port, which, by the way, has been in existence for a very long time. [00:35:37] Speaker 04: It wasn't invented by Lord. [00:35:39] Speaker 04: But here they're claiming a power injectable port. [00:35:45] Speaker 04: Let's see. [00:35:48] Speaker 04: We'll look at a 417. [00:35:52] Speaker 04: The 417 patent is an assembly for identifying a power injectable port, access port. [00:35:59] Speaker 04: A first identifiable feature, having a first access port, the first feature identifying the access port is suitable for flowing fluid at a fluid flow rate of at least one milliliter per second. [00:36:15] Speaker 04: Second identifiable feature to the access port, perceiving, sorry, yeah. [00:36:26] Speaker 04: the at least one milliliter per second through the access port. [00:36:30] Speaker 04: A secondary development feature incorporated into the access port, perceivable following subcutaneous implementation. [00:36:37] Speaker 04: And then it refers to the cavity at least 35 PSI. [00:36:41] Speaker 04: This is a apparatus claim that claims the function of the port through its physical properties related to the port structure. [00:36:54] Speaker 04: There's no discussion here. [00:36:56] Speaker 04: And this claim does not explain any relationship of the radio opaque material, which has nothing to do with any of that. [00:37:06] Speaker 04: So the radio opaque material then is used for... You're still talking about the Android dynamics of claim, right? [00:37:13] Speaker 04: That's the radio dynamics of claim. [00:37:15] Speaker 04: So now we go to, we'll look at the claim in the [00:37:22] Speaker 04: case here and wasn't okay. [00:37:26] Speaker 04: Keep going. [00:37:27] Speaker 01: Aren't the identifiable features in this, in this NGO dynamic, when it talks about first identifiable feature, second identifiable feature, isn't that printed matter? [00:37:37] Speaker 04: It is printed matter. [00:37:38] Speaker 04: Yes. [00:37:40] Speaker 04: But it is also, it is also, I'm sorry, maybe I misunderstood your question. [00:37:46] Speaker 04: You say it again. [00:37:47] Speaker 04: What the first identifiable feature it's printed matter, right? [00:37:52] Speaker 01: The angiodynamics patent, it's a port, and then it has these features that tell you what the port can do. [00:38:00] Speaker 01: You say those features that tell you what the port can do are what makes it not eligible. [00:38:08] Speaker 04: Yes, that's correct. [00:38:09] Speaker 01: I mean, the angiodynamics one, but we found it eligible. [00:38:12] Speaker 01: And that's the claim to advance there, too. [00:38:14] Speaker 01: I mean, it's the same thing. [00:38:15] Speaker 01: It's a baccalaureate. [00:38:17] Speaker 01: Vascular access work, which you say, I mean, everybody agrees is nobody's and none of you have invented that. [00:38:25] Speaker 01: And then what's changing it or what's making it eligible or what's making it different from the prior art is these identifiable features. [00:38:35] Speaker 01: If your argument holds true for the patent we have here, then it should have held true for angiodynamics patent. [00:38:43] Speaker 04: Most likely. [00:38:45] Speaker 01: But we can't overrule that. [00:38:47] Speaker 04: It may be an en banc situation. [00:38:50] Speaker 04: Let me try this. [00:38:51] Speaker 01: We're not taking this case en banc. [00:38:52] Speaker 03: Let me try this on you. [00:38:54] Speaker 01: Go ahead. [00:38:57] Speaker 03: Angiodynamics draws a distinction between the printed matter, the radiographic printed matter, and the means used to convey the information. [00:39:06] Speaker 03: And there, the court was referring to means as process or method. [00:39:14] Speaker 03: They were analyzing two device patents and one methods patent. [00:39:21] Speaker 03: The methods patent specified the use of Venus port assemblies as compatible with CT scanning requirements. [00:39:30] Speaker 03: And the court's description of means, quoting that, refers to its finding that the claimed invention, now in quoting, makes the claim port particularly useful for the purpose of CT scanning. [00:39:44] Speaker 03: because the marker allows the implanted device to be readily and reliably identified via x-ray as used during CT imaging. [00:39:54] Speaker 03: This doesn't mean that means the materiality of the radiographic marker material itself, but rather the process through which it's used and useful in the context of a methods [00:40:13] Speaker 03: But there's no methods patent at issue here. [00:40:14] Speaker 03: I think that's your distinction, if there is one. [00:40:18] Speaker 04: Well, certainly, the 639 patent is what you're referring to. [00:40:22] Speaker 04: And certainly, there's a distinction between the method patent and the apparatus. [00:40:26] Speaker 04: We have, in our case here, in the Medcom case, apparatus claims. [00:40:33] Speaker 04: And addressing those apparatus claims, you have to take it in the context of all of your precedents. [00:40:41] Speaker 04: And I would agree with you. [00:40:43] Speaker 04: that the latest case, the Angio case, creates what seems to be a conflict with the traditional use of the existing, understandable... I don't understand why we're here, frankly. [00:41:00] Speaker 01: I don't understand why this isn't a question of obviousness about whether the printed matter doctrine, which is some of these claims seem to be contained printed matter, whether that, once excluded, makes these claims obvious or not. [00:41:16] Speaker 01: Do you have a 103 challenge? [00:41:19] Speaker 04: Yes, we do, sir. [00:41:21] Speaker 04: We haven't spoken about hours at all. [00:41:24] Speaker 02: That's fine. [00:41:25] Speaker 02: Unfortunately, we're out of time, but we have it all in the briefs. [00:41:28] Speaker 02: Could you just tell us about your 103 challenge? [00:41:30] Speaker 02: Is it basically the idea that it was already well known to add radiographic material to implanted medical devices? [00:41:40] Speaker 02: the claimed medical device here in terms at least structurally is all known elements and so therefore skilled artisan be likewise motivated to add alphanumeric radiographic material to the side of a port assembly? [00:41:56] Speaker 04: Yes, we have all of that. [00:41:58] Speaker 04: It is exactly that I think you said. [00:42:00] Speaker 02: So if this were to be remanded I guess you would try to go for summary judgment on that? [00:42:04] Speaker 04: Absolutely. [00:42:06] Speaker 04: Yeah, if I may just say one thing. [00:42:09] Speaker 04: The thing about the contention between Andrew Nam's case and this is that what that radiographic marker is doing, all of this doing, is telling you what the court could do. [00:42:23] Speaker 04: It's already what it has as a thought here that you should not allow, in our case at least, the printed matter doctrine that [00:42:35] Speaker 04: you said is per se abstract. [00:42:39] Speaker 04: That's the reason why it was put on the adolescent list. [00:42:43] Speaker 04: We think it's printed matter that's providing the functionality that they're claiming. [00:42:48] Speaker 02: We have your argument. [00:42:49] Speaker 02: Thank you very much. [00:42:49] Speaker 02: We'll give you one minute for your response. [00:42:51] Speaker 00: Thank you, Your Honor. [00:42:54] Speaker 00: Three quick points. [00:42:55] Speaker 00: Obviousness is not here. [00:42:57] Speaker 00: Bedcom did not move for summary judgment on obviousness. [00:43:01] Speaker 01: I think you're going to say no, but I could not follow at all the distinctions between those patent claims we looked at in our prior case and the ones you have here. [00:43:11] Speaker 01: They're a little bit more detailed about the information that's being conveyed, but isn't it the same information? [00:43:17] Speaker 00: It's exactly the same information and it's exactly the same means. [00:43:22] Speaker 00: So the two apparatus patents at issue in NGO Dynamics, the claims are indistinguishable, materially indistinguishable from the claims here. [00:43:30] Speaker 00: And the claims here, remember, as to angiodynamics were already upheld as non-obvious by the patent office. [00:43:36] Speaker 00: So Your Honor, indistinguishable from angiodynamics, it is on all fours, and it does control. [00:43:42] Speaker 00: Second, I appreciate Judge Hughes' oddity of importing the 102-103 use of unpatentable printed matter into the 101 inquiry. [00:43:54] Speaker 00: But I think what the court tried to do in angiodynamics is reconcile [00:43:59] Speaker 00: printed matter with Alice by what we talked about earlier. [00:44:02] Speaker 00: Claim as a whole. [00:44:03] Speaker 01: And the key holding of anti-coronavirus is not... Well, I understand why they... I mean, I can read the case and understand it, but we get enough criticism for expanding 101 into everything. [00:44:14] Speaker 01: I don't understand why we're expanding it into printed matter. [00:44:17] Speaker 00: Understood, Your Honor, but here it's easily resolved because this is not solely directed to printed matter. [00:44:24] Speaker 00: Not solely directed. [00:44:25] Speaker 00: And that ends the case. [00:44:26] Speaker 00: These are means [00:44:27] Speaker 00: Whether they're etched, Your Honor, whether they appear on a raised plate, whether there's a use of radiographic ink, all of which are embodiment. [00:44:33] Speaker 01: If it was solely directed to printed matter, we wouldn't even need Alice, right? [00:44:36] Speaker 01: Because it just wouldn't be statutory. [00:44:37] Speaker 00: That's exactly right, Your Honor. [00:44:38] Speaker 00: 100%. [00:44:39] Speaker 00: That's exactly right. [00:44:40] Speaker 00: Just a quick word. [00:44:42] Speaker 00: Mr. Zayer spent a lot of time on no functional relationship. [00:44:45] Speaker 00: I want to point out that we win under 101 under angiodynamics, even if there is no functional relationship to the substrate. [00:44:53] Speaker 00: Angiodynamics found no functional relationship to the substrate and still found patent eligibility on the ground that it was not solely directed to nonpatentable printed matter. [00:45:04] Speaker 00: And Your Honor, last point, you asked whether the prior art had, the key distinction on the prior art is the prior art didn't have [00:45:12] Speaker 00: any power injectable ports using radiographic markers, none. [00:45:18] Speaker 00: And don't take it from me, take it from the PTAD because they found each of these three patents patentable over re-examination in the re-examination certificate. [00:45:27] Speaker 02: The re-exam requester did a flawed job. [00:45:30] Speaker 00: I'm sorry, you're on? [00:45:30] Speaker 02: Nothing. [00:45:34] Speaker 02: The cross-appeal [00:45:35] Speaker 02: He's going to get up in. [00:45:36] Speaker 00: Yes, Your Honor. [00:45:37] Speaker 02: The judge said law of the case. [00:45:39] Speaker 02: So it wouldn't really be that objectionable if we were to reverse in your favor on the appeal to likewise, at a minimum, vacate and remand on the cross-appeal, given that there really wasn't any independent reasoning on the other side's patents. [00:45:54] Speaker 00: That's correct, Your Honor. [00:45:55] Speaker 00: We think you could affirm for. [00:45:57] Speaker 00: Affirm? [00:45:58] Speaker 00: Sorry. [00:45:58] Speaker 00: We think they forfeited their argument. [00:46:02] Speaker 00: And you could affirm, but we [00:46:04] Speaker 00: would also accept that you should vacate and remand for instructions to use the proper reasoning, because the reasoning was identical. [00:46:10] Speaker 02: Thank you. [00:46:10] Speaker 02: Thank you, Your Honor. [00:46:12] Speaker 02: Just on the cross appeal. [00:46:13] Speaker 02: Yes. [00:46:14] Speaker 04: On that last point, we think it's more than reasonable that if Pat's covering the same things are eligible, they're all eligible. [00:46:25] Speaker 04: If they're not eligible, [00:46:27] Speaker 04: They're all ineligible. [00:46:29] Speaker 04: We've never taken an opposite position that one company can have the same claims that cover pretty much the same scope being different. [00:46:38] Speaker 01: In the future, it might behoove you to provide more than one paragraph on your argument, particularly when you concede that the patents are somewhat different. [00:46:50] Speaker 01: I mean, one paragraph doesn't really tell us why you think you should win your cross appeal. [00:46:57] Speaker 01: very much. [00:46:59] Speaker 01: In certain circumstances, if you don't give us an argument, we find it forfeited. [00:47:04] Speaker 01: I see. [00:47:06] Speaker 02: Would you say that your claims in your patent are really overlapping subject matter with the claims in Bard's patents? [00:47:15] Speaker 04: Well, they claim to a port with a radiographic identifiable mortgage. [00:47:20] Speaker 02: Right. [00:47:21] Speaker 02: They're both claiming the same thing. [00:47:23] Speaker 02: It seems like PTO should have provoked an interference here. [00:47:27] Speaker 04: Well, there was an interference. [00:47:30] Speaker 04: However, there was an interference. [00:47:31] Speaker 04: There was an interference. [00:47:32] Speaker 02: There was a priority contest. [00:47:33] Speaker 04: Yes, there was a priority contest. [00:47:35] Speaker 02: You're a first to invent patent, and they're a first to invent patent? [00:47:37] Speaker 04: There was. [00:47:38] Speaker 04: So there was that. [00:47:40] Speaker 02: And then the PTO shot both patents out the door? [00:47:44] Speaker 04: Well, I honestly can't regret it. [00:47:47] Speaker 02: Never mind. [00:47:48] Speaker 02: It's OK. [00:47:49] Speaker 02: We have your arguments on the cross of field. [00:47:50] Speaker 02: Thank you very much. [00:47:51] Speaker 04: Thank you very much. [00:47:53] Speaker 04: The case is submitted.