[00:00:02] Speaker 05: 23-1668 Copan-Italia spa vs ITC. [00:00:10] Speaker 05: Mr. Isitwodarski. [00:00:12] Speaker 03: It is. [00:00:13] Speaker 05: Please proceed. [00:00:14] Speaker 03: Thank you. [00:00:15] Speaker 03: May it please the court. [00:00:16] Speaker 03: An issue in today's appeal is the International Trade Commission's determination that not one but three separate claim limitations should be construed to exclude the inventor's own device. [00:00:28] Speaker 03: We're still concerning two of these claim terms, oriented manner and [00:00:32] Speaker 03: perpendicular. [00:00:33] Speaker 03: The commission's construction makes the claims impossible to practice. [00:00:37] Speaker 00: Council, when you say exclude the patent owner's own device, you mean commercial device, right? [00:00:45] Speaker 03: I mean the preferred embodiment, which was before the examiner early in prosecution as the physical device. [00:00:50] Speaker 03: So it's the preferred embodiment. [00:00:52] Speaker 05: There's the preferred embodiment and there's the physical device. [00:00:54] Speaker 05: It may or may not be the same thing. [00:00:56] Speaker 03: Understood. [00:00:56] Speaker 03: I agree with that. [00:01:01] Speaker 00: And your specification uses the word perpendicular to mean the same thing as normal, right? [00:01:13] Speaker 03: I would say that ordered manner is caught in the specification to be normal to the surface and perpendicularly. [00:01:22] Speaker 03: Yes. [00:01:23] Speaker 03: So I would say it begs the question of what those two things mean in the context of the patent and its teachings, the entire intrinsic record. [00:01:30] Speaker 03: But I agree that normal and perpendicularly were directed at communicating the same teaching. [00:01:38] Speaker 05: And there's one thing that's kind of interesting to me here. [00:01:43] Speaker 05: like the board said look perpendicular to close to 90 degrees, which of course would be, I think, any layman's understanding of the word. [00:01:51] Speaker 05: And I think that's a fair decision. [00:01:53] Speaker 05: Is it right that you're saying that that's not the way it would be construed by people still in this particular part? [00:01:59] Speaker 03: That's correct, Your Honor. [00:02:00] Speaker 03: And I think that's what we grapple with. [00:02:01] Speaker 03: It came up with the idea. [00:02:02] Speaker 05: But it's plain meaning. [00:02:03] Speaker 05: But it's got to be plain meaning to a person in GISSAR. [00:02:06] Speaker 03: Exactly. [00:02:06] Speaker 03: Which would be the textile art and electrostatic flocking lights. [00:02:09] Speaker 05: I understand those people wouldn't understand it to be 90 degrees or pretty close to 90 degrees. [00:02:14] Speaker 03: They would not. [00:02:14] Speaker 03: As a matter of fact, that would be an impossible result to achieve. [00:02:16] Speaker 05: Well, what would they understand it to be? [00:02:19] Speaker 03: They would understand that it means it stands up straight from the surface of the surface to be flat. [00:02:26] Speaker 00: Is that language anywhere in the specification? [00:02:29] Speaker 03: I believe it is, Your Honor, in column 3, 43 to 51, when you understand [00:02:37] Speaker 03: What's being discussed there is you've oriented the fibers or aligned them by subjecting them to an electrostatic field and with that alignment they're directed towards the adhesive on the tip of the swab and they're anchored or deposited to create the ordered manner and what the specification teaches in column three is [00:02:56] Speaker 03: your honor, is that as a result of that, the finished swab is able to maintain that ordered arrangement where you have the right dimensional and value characteristics of the fibers to use. [00:03:09] Speaker 03: And there you've seized the invention because, indeed, in this manner, as it says, starting at column 347, [00:03:16] Speaker 03: Indeed, in this manner, the capillary represented by each fiber, by virtue of which it can carry out its task of absorbing and releasing essentially the same quantity of specimen, remains unimpaired and functional. [00:03:28] Speaker 03: Two important points there, Your Honor. [00:03:32] Speaker 03: The specification, for good reason, never talks about 90 degree angles. [00:03:37] Speaker 03: And that's because each fiber simply needs to stand up and perform its function as a capillary within the invention. [00:03:43] Speaker 00: The concern I'm having with your argument is that [00:03:48] Speaker 00: Yes, it's a person of ordinary family art reading the specification, but it doesn't say just stand up. [00:03:54] Speaker 00: It says very clearly, and we're talking about notice, right? [00:04:00] Speaker 00: It's important because somebody reading this patent should be able to understand what the claims are covering and what the specification, which is quite short, says is that these fibers are substantially parallel to each other and normal to the surface of the rod. [00:04:18] Speaker 00: I mean, and then there's nothing in here that makes me think perpendicularly should have a different meaning than the ordinary meaning. [00:04:29] Speaker 00: And that's important because of the public notice function of pens. [00:04:31] Speaker 00: Somebody reads this and then they try to understand what that word means. [00:04:34] Speaker 00: There's nothing in your specification that suggests that perpendicular has a different meaning. [00:04:41] Speaker 00: in the context of your infection, how you've described it. [00:04:43] Speaker 03: I understand, Your Honor. [00:04:45] Speaker 03: I disagree with that. [00:04:46] Speaker 03: As we noted, Figure 2 by itself, as the illustration of what's being taught, does not have fibers that are normal to the surface. [00:04:54] Speaker 03: Your Honor, I would also note that within the prosecution history, the applicant precisely said in response to an early office action, this is at Appendix 6806, [00:05:04] Speaker 03: In the 2008 office action, the fibers must stand upright to ensure the correct functionality, namely high absorbency and high release. [00:05:13] Speaker 03: They must also have the correct density to the layer to micronize the sample to enable... Was that language said before or after perpendicularly was added to the claim? [00:05:25] Speaker 03: Your Honor, I believe it's in discussing perpendicular. [00:05:28] Speaker 00: OK. [00:05:29] Speaker 03: And I think it raises another point, Your Honor. [00:05:32] Speaker 03: When we look at all this when we're talking about a person skilled in the art, two things. [00:05:35] Speaker 03: The specification does talk about that you do things according to established electrostatic flocking processes. [00:05:43] Speaker 03: And then some of the authority cited within the patent specification refers people to authority that talks about successful electrostatic flocking. [00:05:51] Speaker 03: And again, as Dr. Mickelson had stated during his [00:06:01] Speaker 01: I'm sorry. [00:06:02] Speaker 01: Why didn't the claims, if your view is that flocking is enough, why didn't the claims just say flock instead of using the term perpendicular? [00:06:11] Speaker 03: I believe because as Dr. Mifflin stated, Your Honor, and as the applicant grappled with the examiner during the discussion of Buzzy and the 027 prosecution, you can actually try to electrostatically flock, not in the way to achieve what the industry understands as perpendicular to electrostatic flocking. [00:06:29] Speaker 03: But because of the limitations of real-world flocking in the electrostatic chamber, [00:06:35] Speaker 03: The person who knows those processes knows that you're going to get variability. [00:06:39] Speaker 03: What you're going to get is a fiber that stands up. [00:06:42] Speaker 03: And so the industry understands that's what we call perpendicular. [00:06:45] Speaker 03: And that's Dr. Mickelson's testimony in the record below, Your Honor, that because the people who know how to do this and would have read this specification know that you will never achieve perpendicularity. [00:06:57] Speaker 03: And I would note both experts agree with that. [00:07:00] Speaker 01: Interpretation doesn't require it. [00:07:04] Speaker 03: Well, then that becomes a separate issue, Your Honor. [00:07:06] Speaker 03: That's what it says. [00:07:07] Speaker 03: It says close to perfect, right? [00:07:10] Speaker 03: The construction that Dr. Guido offered that the Commission embraced turns it into close to 90-degree erroneous. [00:07:17] Speaker 03: That's a construction the Commission applied, which we believe is legally erroneous. [00:07:21] Speaker 03: I would note from that end, Your Honor, that during prosecution, one of the major issues that's discussed in the briefing was [00:07:27] Speaker 03: substantially was in proposed claim language for substantially perpendicular. [00:07:32] Speaker 03: The examiner said that introduced an indefinite term and created a standard that wasn't clear to understand the claim limitation. [00:07:38] Speaker 03: I would suggest we amended to take that out to cure that infirmity, allowing this construction by the commission to just put back in close to it. [00:07:48] Speaker 03: Whether it's substantially or close to you, you've created the same problem, which is there is no longer a clear standard from which Copeland or any member of the public [00:07:56] Speaker 03: can understand whether the claim limitation is met. [00:07:59] Speaker 03: I would say it's worse than that here, Your Honor, though. [00:08:02] Speaker 03: The Commission never grappled with, under its construction, these are hundreds if not thousands of minuscule, almost impossible to see fibers to the human eye. [00:08:14] Speaker 03: How would anyone ever attempt, if a 90-degree or close to 90-degree angle is required of each of these fibers in the layer, how would one go about ever even proving, assuming it was a clear standard, how could I go about proving I've ever met a clear standard? [00:08:33] Speaker 05: Well, I mean, maybe you shouldn't have used the word perpendicular. [00:08:37] Speaker 03: I understand. [00:08:38] Speaker 05: I mean, you know, problems like this inert to the climb drafter, right? [00:08:43] Speaker 03: Well, I think I would respectfully disagree, Your Honor. [00:08:46] Speaker 03: And I'd say I didn't use 90 degrees. [00:08:48] Speaker 03: And then I'd go back to the point you raised. [00:08:49] Speaker 05: Were you the person that drafted it? [00:08:52] Speaker 03: I wasn't. [00:08:52] Speaker 03: No. [00:08:52] Speaker 05: But I would go back to your- I'm just wondering if I actually just insulted you personally or just your clients, Pat. [00:08:57] Speaker 05: Neither, Your Honor. [00:08:59] Speaker 03: Happy to have the dialogue. [00:09:00] Speaker 03: But I guess I would go back to your point. [00:09:03] Speaker 03: At the outset is that we didn't use 90 degrees. [00:09:07] Speaker 03: It doesn't appear anywhere in the claims or in the specification. [00:09:10] Speaker 05: And again... What about the... And it always comes from the examiner, not your client. [00:09:15] Speaker 05: But in the Office section on 6781, it looks to me [00:09:20] Speaker 05: like the examiner would understand the use of the word perpendicularly and the word parallel in a manner in which normal people would understand them. [00:09:29] Speaker 05: different as in the art. [00:09:31] Speaker 05: So can you address that portion of the prosecution history? [00:09:34] Speaker 05: Because the board side, or the ITC, cited that as supporting their construction. [00:09:39] Speaker 03: Yeah, understood, Your Honor. [00:09:40] Speaker 03: And again, first, we didn't acquiesce that. [00:09:42] Speaker 03: And I think we have to understand that all of these prior art references that were addressed during examination, none of them were flock swabs or meant for the collection of biological specimens. [00:09:52] Speaker 03: So in trying to overcome the- Did you disagree? [00:09:55] Speaker 00: You said you didn't acquiesce in the examiner's observation. [00:09:58] Speaker 00: But did you disagree with that? [00:09:59] Speaker 03: I believe, Your Honor, if you understand the passage from the prosecution history that I cited where we were always trying to- What is your passage? [00:10:08] Speaker 03: Yes, Your Honor, it's Appendix 6806, the response to the February 25th, 2008- Exactly which statement are you relying on? [00:10:17] Speaker 00: It's volume one. [00:10:20] Speaker 03: The quote is, the fibers must stand up to ensure the correct functionality, namely high absorbency and high release. [00:10:27] Speaker 03: And that, Your Honor, is a very succinct articulation of the invention. [00:10:32] Speaker 00: The problem I'm having is that there's nothing on that page that you've cited to us that is talking about what perpendicular means. [00:10:40] Speaker 00: It says they must stand up, but there's nothing saying, I don't even know if this is talking about a claim that had the word perpendicular in it. [00:10:48] Speaker 03: Your Honor, I believe it is, but two points on that again. [00:10:54] Speaker 03: Going to Judge Moore's original conversation with me, I believe we're talking about someone who is skilled in the art of textiles and electrostatic flocking. [00:11:02] Speaker 03: The record below, I think, very amply establishes that a person there would understand perpendicular there does not mean 90 degrees. [00:11:10] Speaker 00: So if I look at page 6797 to 6798, [00:11:15] Speaker 00: That's the claim that this discussion you're relying on is talking about. [00:11:20] Speaker 00: And I don't see the word that we're talking about today in that claim. [00:11:25] Speaker 00: So I'm having a hard time understanding why this is something that is relevant. [00:11:30] Speaker 00: You can take a look at it. [00:11:32] Speaker 00: It's 6797 and 98. [00:11:34] Speaker 00: It does have substantially parallel to each other and normal. [00:11:46] Speaker 00: But nonetheless, and again, this pager citing is not talking about perpendicular. [00:11:55] Speaker 03: I understand, Your Honor. [00:11:55] Speaker 03: I believe when we talk about normal and perpendicular, again, to the question and answer I had with Judge Moore, that we're talking about normal and perpendicular are describing. [00:12:06] Speaker 00: They're synonymous. [00:12:07] Speaker 00: You're saying they're synonymous. [00:12:08] Speaker 03: And I agree with that, Your Honor. [00:12:08] Speaker 03: And then it begs the question about how they're defined within the context of this teaching and this patent. [00:12:15] Speaker 03: And again, I don't think the applicant ever gave anyone any indication that it should be fairly tall as 90 degrees. [00:12:22] Speaker 03: The figure two of the patent shows us that. [00:12:23] Speaker 05: OK, I have a dumb question. [00:12:25] Speaker 05: But you know, offenses are wrong. [00:12:27] Speaker 05: And so I respect the fact that you only give us portions of documents that are relevant to what we need to decide. [00:12:32] Speaker 05: So you're citing 6806. [00:12:35] Speaker 05: And I can't tell you what this comes from. [00:12:37] Speaker 05: It's clearly an applicant's response of some sort. [00:12:40] Speaker 05: Is it a response to that office at panel 6781? [00:12:43] Speaker 05: Or was this an applicant response that preceded the office action on 678-1? [00:12:48] Speaker 03: I don't know, Your Honor, from my notes. [00:12:50] Speaker 03: I know that it's a response to the office action dated February 25, 2008. [00:12:53] Speaker 05: February 25, 2008. [00:12:57] Speaker 00: And am I correct in understanding that the claim 10 that that portion you're referring to is referring to is actually recited on pages 6797 to 98? [00:13:17] Speaker 00: You cited a page to us that's referring to what's recited in claim 10. [00:13:24] Speaker 03: Yes. [00:13:25] Speaker 00: And I'm wondering if the claim 10 that it's referring to, just for confirmation, is the claim 10, which is at a 6797 to 98. [00:13:35] Speaker 00: 6797. [00:13:46] Speaker 03: Yes, Your Honor. [00:13:49] Speaker 03: Thank you. [00:13:53] Speaker 03: I would also like to [00:13:58] Speaker 03: Discuss, Your Honors, while I have a moment, the oriented manner limitation of Claim 741, unless you'd like me to remain on the perpendicular. [00:14:06] Speaker 05: Counsel, you're almost out of all your time and all your rebuttal time. [00:14:09] Speaker 05: And you have to win multiple arguments to prevail, right? [00:14:12] Speaker 05: So why don't you just take a minute on oriented manner, so you can make your strongest argument on that. [00:14:17] Speaker 03: Thank you, Your Honor. [00:14:18] Speaker 03: I think oriented manner would have lived with the Commission's determination, had it been as originally stated on page [00:14:25] Speaker 03: Appendix 66 the problem is that it's not the construction that was applied instead on Appendix 69 The second sentence was added the permissible deviation from the common orientation is an issue of fact [00:14:40] Speaker 03: I think at that point, Your Honor, it speaks about this 90 degree attributes and perpendicular attributes of claim limitation that's not in this patent. [00:14:52] Speaker 03: And again, I believe it created a standard that we don't know how it can be met and is indefinite. [00:14:59] Speaker 03: All we needed to do [00:15:01] Speaker 03: under the clear teaching of the specification was subject the fibers to an electrostatic field, which would align those fibers such that they could be anchored into the adhesive. [00:15:12] Speaker 03: So if the ALJ and the commission ultimately had embraced just that original proper construction, I believe that the limitation was properly construed [00:15:22] Speaker 03: and would have been met by the evidence below. [00:15:25] Speaker 03: I would say, Your Honor, then I would just ask that I believe the reality of where we are arguing this matter in December of 2023 with patents that end in March of 2024, I think we face [00:15:38] Speaker 03: one of three outcomes, affirmance that we believe legal error should preclude. [00:15:43] Speaker 03: Otherwise, I'm sensitive to the fact now that either this court would believe it could not get to a full appellate decision within the remaining life of the patent, which I think would require the final [00:15:59] Speaker 03: determination below to be vacated and the appeal to be dismissed. [00:16:04] Speaker 03: And I believe that this court believes that it could come to a full appellate decision on this matter. [00:16:11] Speaker 03: It raises the somewhat interesting issue of if it believed with me that there is legal error, it would remand. [00:16:18] Speaker 03: And I would agree then with the commission's attorney on brief that we're now at a point where it would be futile. [00:16:26] Speaker 03: And I think as a reasonable extension of Texas Instruments and the LSI opinions, it would be another circumstance where established practice would argue for vacating the final determination and looting the appeal. [00:16:40] Speaker 05: I guess I'm a little confused about what you just said. [00:16:44] Speaker 05: You're saying your patents are expiring in March 2024, so an exclusion order is going to be worthless after that time, is that right? [00:16:52] Speaker 03: One would not be available after that time. [00:16:54] Speaker 05: Right, right, right. [00:16:56] Speaker 05: What is it you're asking us to do as a result of that? [00:17:00] Speaker 03: Based on the legal error, Your Honor, I believe that the established practice from Texas Instruments and LSI is that there would be an order to the commission that they vacate the final determination based on the legal error and with instruction for the investigation to terminate because of the expiration of the patents. [00:17:20] Speaker 03: And then this appeal would be dismissed. [00:17:23] Speaker 05: And can I ask you something? [00:17:25] Speaker 05: Did you file for an expedited review of this case? [00:17:29] Speaker 03: Yes, we did, Your Honor. [00:17:30] Speaker 05: Did you do expedited briefing? [00:17:31] Speaker 03: Yes, we did, Your Honor. [00:17:33] Speaker 03: As a matter of fact, we lived with the schedule imposed by the court, and we self-expedited our reply so that everything would be fully briefed the second week of July. [00:17:42] Speaker 05: Did you formally ask for expedited briefing, or did you self-expedite? [00:17:48] Speaker 03: No, we asked for formal briefing, and then even under the schedule set by this court, we put our brief in before the due date. [00:17:56] Speaker 05: Oh, OK. [00:17:57] Speaker 05: Excellent. [00:17:58] Speaker 05: And so is it being argued now also on an expedited basis? [00:18:02] Speaker 05: Did we advance the case for argument? [00:18:05] Speaker 05: Did you all ask for an expedited oral argument as well? [00:18:09] Speaker 03: I believe we did, Your Honor. [00:18:11] Speaker 03: And I could check on that. [00:18:13] Speaker 03: I know, Your Honor, the decision came down. [00:18:15] Speaker 03: We actually filed our notice of appeal before the commission's decision was published in the Federal Register. [00:18:21] Speaker 03: We immediately negotiated with the commission, I believe, under the happenstance standard. [00:18:25] Speaker 05: Directed promptly and quickly. [00:18:27] Speaker 03: I would hope that would be the case in your mind, Your Honor. [00:18:29] Speaker 03: I believe the happenstance standards met here. [00:18:32] Speaker 03: And unfortunately, the circumstances where we are, if you agree with us on legal error, I believe that that's the core system. [00:18:38] Speaker 03: Thank you. [00:18:38] Speaker 05: Thank you very much. [00:18:39] Speaker 03: Thank you. [00:18:40] Speaker 05: I'll resort two minutes of rebuttal time. [00:18:41] Speaker 05: Ms. [00:18:42] Speaker 05: Chen, please proceed. [00:18:49] Speaker 04: Good morning, Your Honors. [00:18:49] Speaker 04: May I please support? [00:18:51] Speaker 04: I'd like to first confirm what Chief Judge Moore and Judge Stoll recognized that the commission reviews with the recognition that the preferred embodiment is not the same as the commercial embodiments that the Copan supposedly shows to be the same. [00:19:08] Speaker 05: You mean theoretically they don't necessarily have to be the same, or in this case they are in fact different? [00:19:14] Speaker 04: In this case, there's no evidence that they were the same. [00:19:17] Speaker 04: Copan alleged domestic industry swabs below in the proceedings below the support is domestic industry. [00:19:23] Speaker 04: There's no evidence that the commercial embodiments that were showed to the examiner during prosecution are the same as the domestic industry swabs. [00:19:33] Speaker 04: It was never produced in discovery. [00:19:35] Speaker 04: It was not [00:19:37] Speaker 04: even in discussion during the hearing. [00:19:40] Speaker 04: So there's no evidence as to even what swabs were shown to the examiner. [00:19:47] Speaker 04: That's the first point. [00:19:48] Speaker 04: The second, the Copan's Council mentioned Figure 2 as supporting Copan's construction. [00:19:54] Speaker 04: And Figure 2, again, was not argued below, but even looking at what the specification discloses regarding Figure 2, the specification says at [00:20:06] Speaker 04: in that column three, lines 12 to 17, that figure two is showing the uniform thickness of the fiber layer. [00:20:15] Speaker 04: And it says nothing about the actual fiber orientation of the fiber shown in figure two. [00:20:21] Speaker 04: So it does not support Copan's construction that perpendicularly means merely standing up at different angles. [00:20:28] Speaker 00: Also, Copan's... What do you think of the quality of that drawing? [00:20:31] Speaker 00: I think it's a little hard to tell. [00:20:34] Speaker 00: I don't know if you're able to figure out things from drawings necessarily. [00:20:38] Speaker 00: We do have some case law on that that says we shouldn't be able to rely on drawings for relative measurements and such. [00:20:45] Speaker 00: Do you have any view on the quality of the drawing itself and whether it shows? [00:20:49] Speaker 00: Some of these look like they're parallel, they're perpendicular. [00:20:52] Speaker 04: Well I think that goes towards what I was saying that figure two is not [00:20:56] Speaker 04: was not, I believe, shown to demonstrate fiber orientation, what angle these fibers are. [00:21:02] Speaker 04: The specification of column three, lines 12 to 17, merely state that figure three is to show that the fibers are in uniform thickness. [00:21:09] Speaker 04: And I think that you can clearly see from figure two. [00:21:14] Speaker 04: And that's all we can take from the specification, is what the specification says regarding you. [00:21:18] Speaker 05: But the argument made below, and if so, how was it ultimately resolved that it would be impossible to manufacture products of this nature that result in truly perpendicular, close to perpendicular uniformity across the slob? [00:21:36] Speaker 05: I mean, was that argument made below? [00:21:42] Speaker 04: The argument was made below during claim construction. [00:21:46] Speaker 04: What Copan's counsel mischaracterized in Dr. Guido's testimony and arena's expert. [00:21:52] Speaker 04: Dr. Guido did not say that it's impossible to manufacture swabs with perfect, with close to 90 degree angles. [00:22:01] Speaker 04: What he testified is, to this date, it hasn't been achieved perfect perpendicularity of all the fibers on the fiber layer. [00:22:10] Speaker 04: But that's not what the commission's claim construction. [00:22:12] Speaker 04: requires. [00:22:13] Speaker 04: The Claiming Commission's claim construction is close to 90 degrees in view of the prosecution history regarding African statements regarding Buzzy and the Griffith Spire. [00:22:26] Speaker 04: The other issue about impossibility to prove infringement, I believe Copan's counsel had mentioned that for the infringement issue, Copan's [00:22:38] Speaker 04: infringement theory relied solely on the fact that these swabs were many accused swabs in its domestic industry swabs were manufactured using electrostatic flocking. [00:22:47] Speaker 04: It did not discuss respondents flocking process. [00:22:50] Speaker 04: It did not look at the fiber orientations. [00:22:53] Speaker 04: The only images of the fiber orientations on the record for infringement came from intervenors expert who included SEM images of these accused swabs and showed that the fibers [00:23:06] Speaker 04: were at random angles. [00:23:09] Speaker 04: And Dr. McKelson, Cokin's expert, agreed that these fibers were at different orientations. [00:23:16] Speaker 04: If I may move on to Copan's counsel also mentioned that none of the prior art discussed during the prosecution related to flock swab for collecting biological specimens. [00:23:28] Speaker 04: That's just entirely not true. [00:23:30] Speaker 04: That language comes from the preamble of the claims. [00:23:34] Speaker 04: And at no point did applicant dispute the examiner's finding that the preamble was satisfied by those prior art. [00:23:46] Speaker 04: If I can make two more points, one, Copan's reply brief at pages 12 and 25 to 29 argues for the first time that the commission misapplied its claim constructions. [00:24:00] Speaker 04: This argument was not made in his opening brief, Copan's opening brief, nor did Copan challenge infringement under the commission's claim constructions in the proceedings below, neither before the AOJ or the commission. [00:24:12] Speaker 04: This court should find Copan forfeited its infringement arguments in its reply brief. [00:24:19] Speaker 04: And finally, I believe Copan's counsel now recognizes that even if it were to prevail on appeal, it's very unlikely that remand proceedings at the commission would conclude and relief can even possibly be issued before the patents expire. [00:24:35] Speaker 04: Copan had attempted to expedite this appeal. [00:24:38] Speaker 04: The court, in its court order, [00:24:41] Speaker 04: said that COPAN can self-expedite its briefing, but it rejected COPAN's argument that the Commission needed to expedite its response brief. [00:24:54] Speaker 04: I believe this argument was expedited because it was calendared as soon as Joint Appendix was filed. [00:24:59] Speaker 04: It was calendared the next available date. [00:25:05] Speaker 04: Of course, this court does not need to wait several months for the patents to expire. [00:25:09] Speaker 04: If the court agrees with our claim constructions, the court can affirm the commission's finding of no violation. [00:25:17] Speaker 04: I'm happy to answer any further questions. [00:25:20] Speaker 04: Thank you very much. [00:25:29] Speaker 02: Good morning. [00:25:29] Speaker 02: May it please the court, Brian Nestor on behalf of interveners. [00:25:33] Speaker 02: I'd like to address first the issue of can stand-up be supported as a definition for perpendicular. [00:25:41] Speaker 02: There is no intrinsic support for that. [00:25:44] Speaker 02: What Copeland's counsel just read to you from A806 was a 2005 statement. [00:25:52] Speaker 02: If you look at the prosecution history when they address the fibers on Buzzy or Griffiths, which happened after that time, those fibers clearly stood up from the surface of the swath. [00:26:06] Speaker 02: And what did Copeland say about that? [00:26:08] Speaker 02: They said that those fibers are not perpendicular. [00:26:11] Speaker 02: That should end the inquiry right there. [00:26:13] Speaker 02: They told the public that fibers that stand up are not perpendicular. [00:26:18] Speaker 02: And I think that's all the court needs to resolve its decision. [00:26:21] Speaker 05: What page should they be that on? [00:26:22] Speaker 02: They did that on A30537-40, A19044, and A13309, and A18950. [00:26:48] Speaker 02: What they really relied on down below for the stand-up definition was their expert. [00:26:54] Speaker 02: And what the court or what the commission found down below was that even Copen's expert rejected the stand-up definition. [00:27:03] Speaker 02: And they did that at A61. [00:27:11] Speaker 02: Specifically, Copen's expert testified the fibers that are standing up are not perpendicular. [00:27:16] Speaker 02: And that's A30532. [00:27:21] Speaker 02: He also testified that standing up and perpendicular are not exact synonyms. [00:27:27] Speaker 02: A30532 again. [00:27:32] Speaker 02: He also testified that perpendicular is talking about how it is related to the surface a bit more, so that perpendicular refers really to what the fibers around it are. [00:27:50] Speaker 05: I was trying to look at your sites and the first one late, or the last one you asked, 18950. [00:27:56] Speaker 05: What it says on that page? [00:27:58] Speaker 05: Is this likely to look at your perpendicular? [00:27:59] Speaker 05: It doesn't seem to appear. [00:28:01] Speaker 05: I mean, I haven't read it closely, but do you want me to take away from that page? [00:28:05] Speaker 02: Sure. [00:28:05] Speaker 02: So on 18950 to 1, what the applicant says is the flock fibers as shown in figure 2B of Griffiths are not normal to the surface. [00:28:19] Speaker 02: Let me grab the appendix. [00:28:32] Speaker 02: And that's at the very top. [00:28:33] Speaker 05: Yes, I see where they say that. [00:28:35] Speaker 05: And what is it that you want me to understand that this is fibers that have been blocked, but they're not normal? [00:28:44] Speaker 05: Is that what I'm supposed to take away? [00:28:45] Speaker 02: If you look at the figure of Griffiths, what it shows is a surface of the swab, and the fibers are standing up from it. [00:28:57] Speaker 05: And I'm looking to see if that's... Well, no, I mean, you can't just look at the figure in Griffith, and I can't make an assessment where the fibers are standing up. [00:29:04] Speaker 05: That's silly. [00:29:08] Speaker 02: Well, the ITC address... Let me see if I can... [00:29:33] Speaker 02: The ITC addressed it on Appendix 60. [00:29:38] Speaker 02: And it shows what the statement Coven made here means relative to the figure in Griffiths, the prior art. [00:29:52] Speaker 02: And in Appendix 60, they show figure 2B. [00:29:56] Speaker 02: They show the fibers on it. [00:30:00] Speaker 05: I don't understand. [00:30:01] Speaker 05: So you're saying [00:30:04] Speaker 05: The ITC looked at the figure and made a determination about whether things are or aren't standing up. [00:30:13] Speaker 02: The ITC found or analyzed Griffiths. [00:30:18] Speaker 02: They analyzed the prosecution history, too. [00:30:21] Speaker 02: And what the ITC concluded is the statements that Coppen made about Griffiths, which relates to the figure. [00:30:29] Speaker 01: It's that the applicant distinguished Griffiths on the ground that it doesn't show normal or perpendicular, right? [00:30:36] Speaker 02: That's absolutely right, Your Honor. [00:30:39] Speaker 02: And the fibers, if you look at 2B, they stand up off the surface. [00:30:45] Speaker 00: And just to be even more clear, this prosecution history was distinguished on the basis of normal being in the claim language, and then later perpendicular was added, right? [00:30:59] Speaker 00: Or changed claim? [00:31:01] Speaker 00: How did that work? [00:31:02] Speaker 02: I think this plain language used the word normal. [00:31:04] Speaker 02: There was a finding the ITC made that normal and perpendicular were the same. [00:31:09] Speaker 00: And that's not challenged on appeal. [00:31:13] Speaker 02: It is not. [00:31:16] Speaker 02: And then if you look at the next page, appendix 61, it's the same thing but a different piece of prior art. [00:31:23] Speaker 02: You see the swab. [00:31:25] Speaker 02: You see the statement that they made in the prosecution history. [00:31:29] Speaker 02: And the swab has fibers that stick out from the surface or stand up from the surface. [00:31:35] Speaker 02: And what the African said there, [00:31:47] Speaker 05: I think you want 19044, where they say uniform thickness of fiber is normal. [00:31:53] Speaker 05: Do not show a layer of uniform thickness of fiber is normal. [00:31:57] Speaker 02: That's right. [00:31:58] Speaker 02: the fibers were extending transversely or slanted. [00:32:01] Speaker 02: That's what they say. [00:32:03] Speaker 02: So it seems like there is clear support. [00:32:06] Speaker 02: In later prosecution, maybe they had a broader understanding of what it meant later. [00:32:10] Speaker 02: I don't understand where that came from. [00:32:12] Speaker 02: But later in prosecution, they clearly disavowed anything close to standing up. [00:32:18] Speaker 02: They disavowed substantially perpendicular. [00:32:21] Speaker 02: And that's what the examiner found below as well. [00:32:24] Speaker 02: They had claimed substantially perpendicular. [00:32:27] Speaker 02: The examiner looked at that and said, in your statements about Buzzy and Griffiths, you had disavowed substantially perpendicular. [00:32:37] Speaker 02: And that's when they got rid of substantially perpendicular, and they claimed perpendicular. [00:32:41] Speaker 02: So that, too, would add to the point that there is no basis to claim perpendicular means stand up. [00:32:47] Speaker 02: And I see I'm out of time, your honor, unless there's more questions. [00:32:50] Speaker 05: Thank you very much, counsel. [00:33:02] Speaker 03: Thank you, Your Honor. [00:33:03] Speaker 03: I understand my time is short. [00:33:04] Speaker 03: So I'll just try and make four points. [00:33:08] Speaker 03: The first, Your Honor, is that I heard some conversation about only if some of the fibers were perpendicular. [00:33:13] Speaker 03: I think if that's the case, if that's the construction, I don't understand it to be the construction. [00:33:18] Speaker 03: Then I think the undisputed testimony is we've been met. [00:33:22] Speaker 03: The construction is that every fiber within the layer must be perpendicular. [00:33:27] Speaker 03: I would say on the impossible to practice, Your Honor, [00:33:31] Speaker 03: Dr. Guido, respondent's expert below, testified that in the real world, a posita isn't stupid and would understand that you'd come nowhere close to 90 degrees. [00:33:41] Speaker 03: So ultimately, that testimony runs up against the proposed construction that he offered as a posita that he knew was impossible to practice. [00:33:49] Speaker 03: My third point, Your Honor, you raised a very good point about buzzing Griffiths. [00:33:54] Speaker 03: I would say that this close to 90 degrees creates this indefinite problem that the commission made worse by imposing buzzy [00:34:00] Speaker 03: And Griffiths as guideposts, neither of those references use 90 degrees or perpendicular. [00:34:05] Speaker 03: I have no idea from the commission's determination how I'm supposed to use them as guideposts. [00:34:10] Speaker 03: So we've taken a less than clear standard problem that was cured during prosecution. [00:34:13] Speaker 01: The guideposts are what the applicant said about them. [00:34:17] Speaker 03: I understand, Your Honor. [00:34:18] Speaker 03: And then if that's the case, if that's literally what it's limited to, then again, we get back to begging the question. [00:34:23] Speaker 03: And I think that's where Dr. Mickelson's testimony is consistent. [00:34:27] Speaker 03: What he was saying in discussing the same issue is that we have no idea whether these were electrostatically flocked, first of all, for example, in Buzzy. [00:34:37] Speaker 03: And if you did, whether you were trying to promote a perpendicular alignment by electrostatic flocking, it is possible. [00:34:43] Speaker 03: to orient an electrostatic clock. [00:34:45] Speaker 03: And as Dr. Mickelson said, get it wrong. [00:34:48] Speaker 03: And you could have fibers that are slanted and transverse. [00:34:51] Speaker 03: You could have them so that they lay down to the adhesive surface and don't allow for the interstices to provide absorption by capillarity. [00:34:58] Speaker 03: All of these discussions were in the context of performing the inventive function. [00:35:02] Speaker 03: That is absorption by capillarity. [00:35:03] Speaker 03: All of that is consistent. [00:35:05] Speaker 03: But I have no idea, Your Honor, other than to say, using them for guideposts, that slanted and transverse fibers would not meet it. [00:35:12] Speaker 05: I still have the indefiniteness problem where I don't know when I'm within close to 90%. [00:35:20] Speaker 03: Thank you. [00:35:21] Speaker 03: And I would just say, from everything we've heard today, I want to just remind us of the standard. [00:35:24] Speaker 03: Obviously, exceptionally clear is the standard to render something impossible to practice. [00:35:29] Speaker 03: To the extent we have some ambiguities or discuss different plausible orientations to some of the things we discussed today, I believe that the fact that we're having that discussion means it's not exceptionally clear. [00:35:40] Speaker 03: Thank you for your time. [00:35:41] Speaker 03: I ask that you take a final determination. [00:35:44] Speaker 05: Thank you. [00:35:44] Speaker 05: All council cases take under submission.