[00:00:05] Speaker 00:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:14] Speaker 04:
Good morning.

[00:00:15] Speaker 04:
Please have a seat.

[00:00:40] Speaker 04:
Good morning.

[00:00:42] Speaker 04:
We have a full day of oral arguments scheduled here this morning.

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We have four cases that are being argued, and one case has been taken on the briefs.

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We'll start with the first case of this morning, which is favored tech corporation versus P2I Limited 2214-1409.

[00:01:10] Speaker 04:
Mr. DeFrance, you have reserved four minutes of your time for rebuttal, correct?

[00:01:15] Speaker 04:
That's correct.

[00:01:16] Speaker 04:
All right.

[00:01:16] Speaker 04:
You may begin, sir.

[00:01:23] Speaker 01:
Thank you, Your Honor, and may it please the Court.

[00:01:27] Speaker 01:
In this case, the Board cut short its analyses of anticipation and obviousness by applying incorrect legal standards to the asserted grounds.

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Those mistakes, led to reject, favors arguments and evidence of a pan

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giving short shrift to the cited references and the perspective of one awarding a skill in the art.

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This case should be remanded for the board to perform a full analysis under sections 102 and 103.

[00:01:50] Speaker 04:
As a housekeeping, is standing still an issue here?

[00:01:55] Speaker 01:
My understanding is that P2I is no longer disputing that, but I also understand that the court has its own independent obligation to assess that and satisfy itself of that issue.

[00:02:07] Speaker 04:
Okay.

[00:02:08] Speaker 04:
All right.

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You may continue.

[00:02:10] Speaker 01:
So I would like to begin with anticipation.

[00:02:13] Speaker 01:
And the board made two errors when it was assessing anticipation.

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The first one was its refusal to consider the results of using one type of electrode disclosed in the specification of the Baughman reference, because that wasn't the only type of electrode that was described in the reference.

[00:02:31] Speaker 01:
So if you look at the Baughman reference, it describes an exemplary one cubic meter chamber of the paragraph 47 of the reference.

[00:02:40] Speaker 01:
And it says in paragraph 48 that that chamber uses electrodes, but it does not specify the type of electrode that's used in that chamber.

[00:02:49] Speaker 01:
Elsewhere in the specification, however, the Bauman reference describes two different alternative types of electrodes that can be used in the chambers of the invention.

[00:02:59] Speaker 01:
One of those, the preferred one, is the electrode configuration where the outer wall of the chamber itself serves as an electrode.

[00:03:07] Speaker 01:
And that's in paragraph 35 of the specification.

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Now, the specification emphasizes that it's being preferred.

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It's the one that's illustrated in the figure, figure one of the specification.

[00:03:18] Speaker 01:
It's the one that's described in the preferred embodiment of the invention in paragraph 61.

[00:03:21] Speaker 02:
And it's the one that, didn't you tell the board, a person of learning skill in the art, would understand immediately, that's the only embodiment that really would be used with example one?

[00:03:34] Speaker 01:
That's correct.

[00:03:35] Speaker 01:
That's the one that we,

[00:03:37] Speaker 01:
asserted to the board that that's the one that we prefer.

[00:03:39] Speaker 01:
That's the one that the person murdering Scotiaro would gravitate toward first.

[00:03:43] Speaker 02:
But I don't think you said gravitate toward.

[00:03:45] Speaker 02:
Didn't the board understand you to be saying that was the only embodiment of example one?

[00:03:52] Speaker 01:
That's not what we said.

[00:03:52] Speaker 01:
I'm not sure what the board thought, necessarily.

[00:03:56] Speaker 02:
Well, I think JA 86, at least, I think the board indicated they thought that you were arguing

[00:04:03] Speaker 02:
that a person of oriented skill in the art would have understood the chamber of example one, quote, to be configured with the chamber wall serving as one of the electrodes.

[00:04:14] Speaker 02:
I took that to mean the board thought your argument was there's not two choices in how a person of skill in the art would undertake example one.

[00:04:23] Speaker 02:
There's only one way to do it.

[00:04:24] Speaker 02:
And that's the argument that they thought they had to evaluate because that's what they thought you were arguing.

[00:04:32] Speaker 01:
Well, if you look at the petition, Your Honor, and I would point you to page appendix 86.

[00:04:40] Speaker 01:
I think that's the page that Your Honor references.

[00:04:42] Speaker 01:
Yes.

[00:04:44] Speaker 01:
You'll see that our arguments expressly indicated that that was the preferred abidement, not the only abidement.

[00:04:51] Speaker 01:
You can see that in the full paragraph.

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It takes up about the bottom 2 thirds of the page right around the middle.

[00:04:58] Speaker 01:
We say that Ballman's disclosure focused on that configuration, which appeared in the purported argument, and was described as particularly suitable for coding with our substrates.

[00:05:08] Speaker 01:
So we didn't argue it was the only one.

[00:05:09] Speaker 01:
We couldn't do that.

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And in paragraph 35 of the Ballman reference, it clearly provides two alternatives.

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So that's not the position we took.

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And that's what the board was understanding.

[00:05:18] Speaker 01:
I think that's another error in its analysis.

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Do we review the board's understanding for abusive discretion?

[00:05:34] Speaker 01:
I suppose that the review of that question would be an abuse of discretion if you saw that there was some clear error made or some error in law made.

[00:05:44] Speaker 01:
I think based on what we said in the petition, you could find an abuse of discretion if that's the standard that you're going to apply because it is clear from what we said here that we weren't saying it was the only one.

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We said it was preferred.

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We said it was the most suitable.

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But that isn't what we said.

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Again, it's not something we should have said based on what's actually described in the reference.

[00:06:06] Speaker 01:
So we explained why a person with a near-scale VR would have understood that at least this preferred option could be used in the confining specification, and then explained the consequences of that, and that it would result in plasma filling the full volume of the chamber, because the entire volume of the chamber would be filled with the gases and would be subject to the electric field applied through that electrode.

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But the board didn't get to evaluating that theory.

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It just rejected our theory out of hand by saying there was another option.

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And so a person of argued skill in the art would not envisage using the refer to the argument because there was another option.

[00:06:49] Speaker 01:
And that's legal error.

[00:06:51] Speaker 04:
Your argument is that the board did not consider that other option.

[00:06:55] Speaker 01:
The board didn't consider our theory because it took a view that as a matter of law our theory couldn't work because there was another option there.

[00:07:05] Speaker 01:
So we could not establish anticipation in the board's view based on the presence of this preferred embodiment because there was another alternative.

[00:07:14] Speaker 01:
And that's just incorrect under cases like Kenamettle, which we've said in our briefs and we've said it to the board.

[00:07:19] Speaker 01:
I think that case is directly on point for the situation here.

[00:07:22] Speaker 01:
So the analysis in that case was finding of anticipation based on a reference that described a cutting tool that had certain features.

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And all of the features were together in one embodiment.

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I think it was a claim and a prior reference.

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But then there was a generic reference to a client misquoting.

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And if you looked elsewhere in the specification of that reference, there were three options listed for what kind of quote it could be applied.

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And the one that was actually in the claims that were issued in that case was the least preferred, but it was one of three.

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And this court affirmed a finding of anticipation based on that reference, because it was permissible to view the reference in that way and to look to those three options as related to the corresponding disclosure and the body that was at issue.

[00:08:13] Speaker 01:
There are no further questions on that issue, but I've moved to the next anticipation issue, which was the picking and choosing issue.

[00:08:19] Speaker 01:
That was the board's other stated ground for rejecting our anticipation ground.

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And on that issue, the board demanded that every single limitation in the claim be described together in the same place in the reference.

[00:08:33] Speaker 01:
And again, that's just not the law.

[00:08:35] Speaker 01:
That's not the way anticipation necessarily works.

[00:08:38] Speaker 04:
What's the case that you rely on that allows you to do what you did here?

[00:08:44] Speaker 04:
On the picking and choosing?

[00:08:46] Speaker 04:
The board says that you did, yes, on the picking and choosing.

[00:08:49] Speaker 01:
I think the best case for that issue is the Purdue Pharma case.

[00:08:53] Speaker 01:
That case has very similar facts to the issue here.

[00:08:56] Speaker 01:
So, in the ballman reference, as far as the picking and choosing issue, which the board flagged as being combining the one cubic meter exemplary chamber

[00:09:07] Speaker 01:
with the disclosed range of power densities that are disclosed elsewhere in the specification.

[00:09:13] Speaker 01:
Our argument was that the specification, and this is at paragraphs 14 to 20, describes the invention as this series of parameters for

[00:09:27] Speaker 01:
for performing a coding process.

[00:09:33] Speaker 01:
And it says that the emissions is a method using these steps.

[00:09:38] Speaker 01:
And it says this method is doing those steps in a chamber, but it doesn't describe exactly what chamber size in that part of the specification.

[00:09:46] Speaker 01:
Elsewhere, there are two embodiments that describe specific chamber sizes, including the one cubic meter.

[00:09:53] Speaker 01:
In the Purdue Pharma case, there's a very similar setup in the reference where there was a claim to a pharmaceutical formulation that had a certain range of concentrations of an excipient.

[00:10:07] Speaker 01:
And it said, combine that with a drug, a generic list data of the drug, just like the generic statement of a chamber at the beginning of the Ballman reference.

[00:10:16] Speaker 01:
And then the court looked elsewhere in that reference in the Purdue Pharma case to find a list of drugs that could be used

[00:10:22] Speaker 01:
one of which was claimed to have defined as an issue in that case.

[00:10:25] Speaker 01:
And the court said that could be the basis for anticipation if those two disclosures were directly related.

[00:10:31] Speaker 01:
That was affirmed in that case.

[00:10:33] Speaker 01:
It's the same kind of theory we presented here.

[00:10:35] Speaker 01:
We have this range of power levels that are described generally for use for the chamber, and then elsewhere in the specification, there are two specific chambers listed.

[00:10:45] Speaker 01:
And our theory was that the person who ordered the scale in the air would see that

[00:10:49] Speaker 01:
The use of the chamber is related to the two chambers that are later disclosed.

[00:10:52] Speaker 01:
It's directly related.

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And that is enough to support refining the anticipation.

[00:10:58] Speaker 01:
The board rejected that, again, out of hand, just took a shortcut and said, because these are in separate places.

[00:11:04] Speaker 01:
And you can see that in its decision in Appendix 14, I believe.

[00:11:10] Speaker 04:
What about what about the case of money and ink versus very signed where we said that in order to anticipate a prior reference must not only disclose all of the claim limitations but disclose them as arranged in the claim?

[00:11:27] Speaker 01:
Right so there's that that line of cases too.

[00:11:32] Speaker 04:
But you're arguing something that's not that.

[00:11:36] Speaker 01:
Right so the analysis in that money hand is that there were two

[00:11:40] Speaker 01:
completely distinct standalone disclosure of different embodiments in that reference.

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And the attempted combination between those two was not supported as a factual matter because it was found that those two, the two parts of those embodiments were not directly related.

[00:11:57] Speaker 01:
That's a factual finding that in that case was not satisfied.

[00:12:00] Speaker 01:
Here the board didn't make that finding at all.

[00:12:03] Speaker 01:
It just said because these are separate things, it is categorically impermissible for anticipation under Section 102.

[00:12:10] Speaker 01:
And that's plainly incorrect.

[00:12:11] Speaker 01:
It may be that the board could make a finding that the range of power levels and the disclosed embodiments of chambers were not directly related, but it didn't make that finding.

[00:12:22] Speaker 01:
It just said they're separate.

[00:12:23] Speaker 01:
They're different in this reference.

[00:12:25] Speaker 01:
And that was a categorical statement of law that's incorrect.

[00:12:28] Speaker 01:
We'd just like the board to go back and actually consider our theory on the merits and make findings to resolve this issue.

[00:12:41] Speaker 01:
I see that I'm into my rebuttal time.

[00:12:45] Speaker 01:
Unless the court has any pressing questions and obvious reasons, I think I would reserve it.

[00:12:51] Speaker 04:
Okay, you can reserve your time.

[00:12:53] Speaker 01:
Thank you, Your Honor.

[00:12:59] Speaker 04:
Councilor Maloney?

[00:13:04] Speaker 05:
May it please the court that the board correctly concluded that Favred had not carried its burden to prove any of the challenge claims unpatible.

[00:13:13] Speaker 05:
The board's analysis was both legally sound and supported by the record.

[00:13:17] Speaker 05:
It was Favred's arguments and evidence that were deficient.

[00:13:22] Speaker 05:
The board properly identified three key deficiencies.

[00:13:26] Speaker 05:
Failure to prove that Baldwin disclosed a plasma polymerization process

[00:13:32] Speaker 05:
having a plasma zone volume of at least 0.5 meters cubed, which is one of the claim limitations of the challenge claim one.

[00:13:39] Speaker 05:
Failure to prove that Baldwin disclosed use of a power density within the claim branch.

[00:13:46] Speaker 05:
In other words, failure to prove that the general range of power density disclosed in Baldwin was tied to any particular plasma zone volume size.

[00:13:59] Speaker 05:
other than the two examples given, both of which use power densities far in excess of the range of the plane.

[00:14:07] Speaker 04:
And then third, on the obvious... Well, why is it that the chamber volume and the plasma zone volume cannot be coextensive?

[00:14:18] Speaker 05:
It's a matter of general principles.

[00:14:20] Speaker 05:
It is possible in some reactions for the plasma volume to be coextensive.

[00:14:26] Speaker 05:
The problem here is that

[00:14:29] Speaker 04:
Would a person with a skill in the art understand that to be the case?

[00:14:33] Speaker 05:
Oh, what a person with a skill in the art would understand that the board makes specific findings on is that often, and actually typically, the plasma volume is smaller than the reactor volume.

[00:14:45] Speaker 05:
The board also found, based on the evidence, the expert testimony of Dr. Parsons and documentary evidence and other references, that whether or not the plasma volume

[00:14:57] Speaker 05:
The size of the plasma volume itself depends on a number of factors, the electro configuration, process conditions, and a number of other technical factors.

[00:15:06] Speaker 05:
favorite argument about vomit is that none of that is disclosed in the example that they chose to rely on as anticipating this fight.

[00:15:15] Speaker 05:
There's nothing in example one about the electro configuration and the rest, Dr. Gleason conceded that point.

[00:15:22] Speaker 05:
There is no discussion of plasma zone volume with regard to example one.

[00:15:28] Speaker 05:
The argument presented in the petition, this goes to the earlier dialogue, was that in the petition,

[00:15:36] Speaker 05:
Faber didn't even acknowledge that there was a second option for the electro-configuration.

[00:15:41] Speaker 05:
Faber said a person of skill in New York would have understood the reactor example from example one to have used this outer electro-configuration because that configuration was described throughout the specification.

[00:15:57] Speaker 05:
That was a very strong suggestion that Faber deliberately made in the petition that there was nothing else described in the specification relevance.

[00:16:05] Speaker 05:
to the electorate configuration of example one.

[00:16:08] Speaker 05:
We then expanded, they then, and the board found in the preliminary decision and in the final written decision that Baldwin disposes two alternatives, including using two parallel electorates.

[00:16:24] Speaker 05:
That is the only fact that the board needed to find to wipe out this argument that Example 1 necessarily had a plasma zone line that was the same size as the reactor line.

[00:16:38] Speaker 05:
Because that whole argument was based on the assumption that an outer electrode configuration had been in fact used in Example 1.

[00:16:47] Speaker 02:
But why does it have to necessarily be that?

[00:16:50] Speaker 02:
If you disclose two different embodiments and only one anticipates, you still have anticipation, even if the second one doesn't.

[00:16:59] Speaker 02:
I would agree with that as a general statement, Your Honor.

[00:17:02] Speaker 02:
So why don't you lose on this argument?

[00:17:04] Speaker 05:
Well, the problem here is they are cobbling together separate disclosures of the reference, and there's no suggestion that a person's skill in the art would have pieced them together in a way favored by us.

[00:17:17] Speaker 05:
Example one is very short.

[00:17:18] Speaker 05:
It says nothing about the reactor configuration.

[00:17:22] Speaker 05:
They relied on that example as an anticipation.

[00:17:25] Speaker 05:
Therefore, it has to either have expressly disclosed the claim or inherently.

[00:17:31] Speaker 05:
The first problem was there was no discussion of plasma zone volume in example one.

[00:17:36] Speaker 05:
which is not there.

[00:17:37] Speaker 05:
So in order to get that, they're essentially arguing and inheriting the argument that it inherently would have had a plasma line that would fill the entire volume of the reactor.

[00:17:48] Speaker 05:
In order to make that argument, example one necessarily would have been performed with this honor electric configuration.

[00:17:57] Speaker 04:
Why wouldn't a person of skill in the art be able to infer to that particular point you're making now?

[00:18:05] Speaker 05:
The person of skill in AR has no information about how example one was performed with regard to the facts needed to assess the plasma flight.

[00:18:15] Speaker 05:
So the person of skill in AR could infer multiple different graphic configurations could have been used, but that's an obviousness argument, not an anticipation argument.

[00:18:27] Speaker 05:
Anticipation is, it's there.

[00:18:30] Speaker 05:
It's either disclosed expressively

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or it's disclosed inherently.

[00:18:33] Speaker 05:
And under inherently, a person's guillotine has to understand that example 1 necessarily had a plasma zone volume of at least half a meter cubed.

[00:18:46] Speaker 05:
And in order to get there,

[00:18:48] Speaker 05:
First of all, I would have had to assume that there was only one possible configuration with the electrode being on the outer wall.

[00:18:56] Speaker 05:
Now by the way, it was also pointed out in their reply brief that we didn't challenge the issue of whether an outer wall configuration would result in the plasma filling the full line.

[00:19:07] Speaker 05:
That's not correct.

[00:19:07] Speaker 05:
That was a challenge point.

[00:19:09] Speaker 05:
The board just didn't need to get to it in its analysis.

[00:19:13] Speaker 05:
So the problem with the example one being in anticipation goes beyond this issue of the plasma zone volume.

[00:19:22] Speaker 05:
Because example one was performed at a power density based on assuming the overall volume of the reactor was the plasma zone volume of two kilowatts per meter cube.

[00:19:35] Speaker 05:
That's four times greater than the maximum value allowed on the plant.

[00:19:40] Speaker 05:
And the board specifically found

[00:19:42] Speaker 05:
that closed one example to teach power density as far in excess of its length of range.

[00:19:50] Speaker 05:
And the board specifically found, back to the first point, that a person of steel and air would not have inferred that the general teaching of a broad range of power densities in Balmain would not have inferred that that teaching was tied to any particular

[00:20:08] Speaker 05:
plasmids are on the line or records are on the line.

[00:20:10] Speaker 05:
So we are here with a substantial evidence, you know, standard overview.

[00:20:16] Speaker 05:
This whole issue that we're discussing in terms of what example one discloses, what personal skill and error would have inferred, with all factual disputes that the board addressed, considered all of the arguments, all of the evidence, technical evidence, the extra opinions, had made specific findings

[00:20:36] Speaker 05:
that a person of skill in the arc, A, would not have inferred that Example 1 necessarily used any particular electric configuration, and B, a person of skill in the arc would not have inferred that the reference discloses a link between this general range of upper densities stated at the beginning of Bummer and any particular reactor volume, size, or plasma zone size.

[00:21:04] Speaker 05:
That's what makes this case different than Kenamel and all the other cases that they're relying on.

[00:21:09] Speaker 05:
In Kenamel, for example, in runners, the claim required was a cutting tool type technology.

[00:21:17] Speaker 05:
And the claim required hardened particles, binders, and cones.

[00:21:23] Speaker 05:
And within each of those three elements, the prior art reference disclosed all three.

[00:21:30] Speaker 05:
and disclosed various options for each of those three categories of components.

[00:21:36] Speaker 05:
The prior art reference clearly taught that they could all be used together.

[00:21:40] Speaker 05:
The issue was whether they had created so many permeations that a particular combination of this layer may not have been envisioned by a persistent layer.

[00:21:49] Speaker 05:
That's not our fact.

[00:21:51] Speaker 05:
We do not have any teaching involvement to use the low end of that general power density branch.

[00:21:59] Speaker 05:
with any particular reactor volume size.

[00:22:02] Speaker 05:
And that's a finding that the experts addressed in detail and that the board made and is supported by substantial elements.

[00:22:11] Speaker 05:
It's supported by the board's recent analysis of Ballman's disclosure itself.

[00:22:16] Speaker 05:
It's supported by the board's consideration by the expert testimony on the subject and these are factual issues.

[00:22:23] Speaker 05:
that the board was off the sports only role is to determine whether there was potential to support those times and it clearly was.

[00:22:31] Speaker 02:
Even if their analysis was sound, what if they misunderstood what the petition was arguing?

[00:22:37] Speaker 02:
Going back to example one of Almond, at page 886, the petition does say things like, it's a preferred embodiment, the full electrode example, right?

[00:22:49] Speaker 02:
Or the embodiment of the example.

[00:22:53] Speaker 02:
It talks about being preferred embodiment, and I think exemplary.

[00:22:58] Speaker 02:
Did the board misunderstand what the petitioner was arguing and what standard of review do we apply to that question?

[00:23:06] Speaker 05:
No, the board did not misunderstand because the record doesn't add up with the petition.

[00:23:10] Speaker 05:
The petition is the document where they were said the reason Purchase Scale would have ever stood except for one of the circular areas was because it's a left turner.

[00:23:21] Speaker 05:
configuration that's used around the spec.

[00:23:23] Speaker 05:
But as the record developed and we submitted our briefing, and they submitted their reply brief, it was very clear that both parties had acknowledged that there were two electoral configurations as well as involvement.

[00:23:36] Speaker 05:
And Faber's argument shifted to, well, but a person still in the area would have preferred to use the outer electoral configuration.

[00:23:44] Speaker 05:
And the board addressed all of those arguments.

[00:23:46] Speaker 05:
It didn't misunderstand

[00:23:47] Speaker 05:
favorites arguments, it fully put those arguments on, and my clients' responsive arguments.

[00:23:55] Speaker 05:
And under those mattocks, the board found that the substantial evidence supporting P2I's view, which is that the person is stealing our would not have assumed and understood that example one used the outer electric configuration.

[00:24:17] Speaker 05:
So I don't believe there was any misunderstanding there.

[00:24:22] Speaker 04:
It seems to me at times that what this case represents is the board weighing competing positions as opposed to the competing evidence.

[00:24:36] Speaker 04:
Can you address that?

[00:24:38] Speaker 05:
Well, the competing positions were based on the parties competing evidence.

[00:24:44] Speaker 05:
There was obviously the patent itself in prayer of references, but both parties relied extensively on follow-up by technical experts, Dr. Parsons from P2I, Dr. Gleason for a favor.

[00:24:57] Speaker 05:
The board considered those expert submissions, both the declarations and deposition testimony, in detail, and that's all set forth in the final written decision.

[00:25:06] Speaker 05:
These are very technical issues.

[00:25:08] Speaker 05:
What a person of lower skill would understand about a plasma deposition process.

[00:25:13] Speaker 05:
And the board was not persuaded by Dr. Gleason's

[00:25:18] Speaker 05:
opinions about whether a person is still in the air or they've understood example one to use an outer electrode configuration.

[00:25:25] Speaker 05:
The board also relied on all its own teachings.

[00:25:31] Speaker 05:
The only teachings involved of what a power density to use with a particular reactor volume are in examples one and examples two.

[00:25:40] Speaker 05:
That's where everything's linked together.

[00:25:42] Speaker 05:
Both of those examples teach powers four times to six times higher than the flame branch.

[00:25:48] Speaker 05:
I'd like, if I could, to turn to the second issue, the obviousness issue.

[00:25:56] Speaker 05:
Council indicated that in regards to... I'm sorry, on the issue of all the elements... Excuse me, sir.

[00:26:05] Speaker 04:
I don't think that they got a chance to address obviousness.

[00:26:09] Speaker 04:
Okay.

[00:26:09] Speaker 05:
Do I have a chance to speak to that at this point?

[00:26:13] Speaker 04:
Well, I may have to give them the opportunity to... time to address it.

[00:26:17] Speaker 05:
I will revert to a different point, Your Honor.

[00:26:21] Speaker 05:
The point was made that the board found Thayer's arguments to be cobbling together separate disclosures of Bauman.

[00:26:33] Speaker 05:
And the argument that we heard was that the court refused to go any further as soon as it found that those teachings were located in separate places in Bauman, and that's just not correct.

[00:26:43] Speaker 05:
The board went further.

[00:26:45] Speaker 03:
The board specifically... If the board had said you can't combine different disclosures to get to anticipation, that would be legally incorrect, wouldn't it?

[00:26:55] Speaker 03:
I agree with you.

[00:26:56] Speaker 03:
Because we've said you have to look at the references as a whole to see what it teaches.

[00:27:01] Speaker 03:
And if a skilled artisan would look at two different embodiments and still conclude that it anticipates, it doesn't have to be all in one embodiment.

[00:27:09] Speaker 05:
I agree with you again.

[00:27:11] Speaker 03:
And I also, at a related point... But that's not what the board found here.

[00:27:14] Speaker 03:
It's not what the board did.

[00:27:16] Speaker 05:
A related point is, for anticipation to be there, it doesn't have to be an example.

[00:27:21] Speaker 05:
Our argument is not that it has to be an example.

[00:27:23] Speaker 05:
They chose to rely on an example for their anticipation argument.

[00:27:27] Speaker 05:
We said the example doesn't show two or three of the key details of the claim.

[00:27:32] Speaker 05:
To your point, Judge Hughes, but the board said it's not just that these are located in separate...

[00:27:37] Speaker 05:
The Board made an express finding, after considering all the expert testimony, that the general statement in Baumann, that the head of the invention can use this broad range of power entities, was not tied to any particular graduate planet.

[00:27:58] Speaker 05:
And so the first to score an ordinary skill,

[00:28:00] Speaker 05:
was left with the conventional understanding that this is very complicated and what particular plasma cell volume or power density would work with a particular plasma cell volume was not clarified in any way and volume other than through the two examples, both of which taught power densities far in excess of the claim.

[00:28:23] Speaker 05:
If you look at the final decision, it's very clear the board did not just say,

[00:28:28] Speaker 05:
These are in separate places, therefore can't be anticipated.

[00:28:30] Speaker 05:
The board went for addressing technical issues, and its findings are supported by substantial elements.

[00:28:36] Speaker 05:
I see a lot of time, so excuse me, unless there are other questions, I don't have time.

[00:28:41] Speaker 05:
Now, thank you.

[00:28:42] Speaker 05:
Thank you.

[00:28:46] Speaker 04:
Mr. President, we'll restore your time back to four minutes.

[00:28:55] Speaker 01:
I want to respond to a few quick points with my reading time.

[00:29:01] Speaker 01:
First is that Council PTO has suggested in the briefing today here that the Board made all sorts of FAP findings, including that a person of ordinary skill in the area would not infer or would not make the connections between the different parts of the involvement reference to make the combinations that we've asserted in our petition.

[00:29:19] Speaker 01:
The Board didn't say that a person of ordinary skill in the area wouldn't make those

[00:29:22] Speaker 01:
As I said to that person in the ordinary scale here, I couldn't do that.

[00:29:25] Speaker 01:
The board tells us exactly the basis for its decision.

[00:29:29] Speaker 01:
If the court looks at appendix 13, the board addressed the electroconfiguration at the bottom of page 13.

[00:29:43] Speaker 01:
And it said, the judiciary ignores the fact that Baldwin also spaced two other projects where electrodes may be used.

[00:29:49] Speaker 01:
In view of this, we disagree with the petitioner's theory.

[00:29:53] Speaker 01:
The board rejected that theory based solely on the fact that there were two different electoral configurations available, and said we could not vote to the preferred one in that context.

[00:30:03] Speaker 01:
Similarly, there's the picking and choosing.

[00:30:05] Speaker 01:
The board said, and this is Appendix 14, the anticipation challenge is based on a combination of different features disclosed in separate portions of law.

[00:30:16] Speaker 01:
Such picking and choosing has no place in making it a one-two rejection.

[00:30:20] Speaker 01:
And then further on it says,

[00:30:22] Speaker 01:
Bauman does not expressly disclose the use of the entire power density range in combination with the reactor having an overall particular presence of volume.

[00:30:31] Speaker 01:
The board is saying because these combination elements are not expressedly put together in a single example, that cannot be anticipation.

[00:30:41] Speaker 01:
The board didn't make any findings about whether a person over a years ago in the area would have gone with the area that they were making.

[00:30:46] Speaker 01:
The board just simply swept it away and said that these are legally admissible.

[00:30:50] Speaker 01:
And that's incorrect in our cases, like kind of metal and brick.

[00:30:53] Speaker 02:
Well, do they say, as a matter of law, it's legally impermissible?

[00:30:56] Speaker 02:
My question, we read that as, you know, they understand the test, and it's just not a sufficient enough relationship.

[00:31:03] Speaker 01:
Well, they didn't go through any of the tests.

[00:31:04] Speaker 01:
They didn't make any findings that there are too many options for a person still in the air to make this combination.

[00:31:09] Speaker 01:
They didn't assess whether those are directly related disclosures.

[00:31:13] Speaker 02:
But they didn't also say we're not allowed ever to look at two different parts of an anticipatory reference, right?

[00:31:20] Speaker 01:
Well, the board said we are rejecting this theory because there are two options disclosed.

[00:31:26] Speaker 01:
That says to me that they don't think they can ever do that.

[00:31:28] Speaker 01:
And the board said we are rejecting this theory because they're taking, they're relying on disclosure from separate parts of the reference.

[00:31:35] Speaker 01:
Not because the person who's going there wouldn't do that, but because this is what they're doing and that's inadmissible.

[00:31:43] Speaker 01:
Council talked about

[00:31:45] Speaker 01:
Our anticipation grounds being based solely on example one.

[00:31:49] Speaker 01:
That's not the argument we made.

[00:31:51] Speaker 01:
We relied on all of them as a whole, as is clear from the petition and all of the arguments that we made and from our experts' declaration.

[00:31:58] Speaker 01:
And the board, as I pointed out, on November 14, took the position that we would have had to show everything together, expressing the value in an example that, again, is not the law.

[00:32:13] Speaker 01:
And I also quickly wanted to point the court to Appendix 2042, Paragraph 101.

[00:32:21] Speaker 01:
This goes back to Judge Starr's questions about whether we argue that Baldwin only described the outer wall electric configuration.

[00:32:32] Speaker 01:
This is expressed as saying that Baldwin didn't specify which kind were used and referring to the outer wall.

[00:32:40] Speaker 01:
I think the parties for their arguments and we'll take this case under advisement