[00:00:04] Speaker 01:
Thank you your honors Jonathan Talcott for repellent.

[00:00:22] Speaker 04:
May it please the court.

[00:00:24] Speaker 04:
We're here today to discuss the unique challenges in the art of wild boar trapping.

[00:00:29] Speaker 04:
solved by Yeager Pro's patented Mind Smart Trap, invented by military veteran Rod Vincent.

[00:00:35] Speaker 04:
The board here committed reversible error, using classic hindsight bias to gap fills that the prior art did not, quote unquote, exclude.

[00:00:44] Speaker 04:
Meanwhile, ignoring a powerful stack of objective evidence showing non-obviousness of the patent invention,

[00:00:51] Speaker 04:
which has been praised in the industry as a major technological advancement in this field, also referred to as Corral Trap 2.0.

[00:01:01] Speaker 04:
The board's findings are not based on substantial evidence or the correct legal standard.

[00:01:06] Speaker 00:
What functional or structural limitation would you say is missing from the prior references in your view?

[00:01:13] Speaker 04:
Yes, Your Honor.

[00:01:14] Speaker 04:
There are at least three claim elements missing, and those include structure and function.

[00:01:21] Speaker 04:
One, wireless protection system.

[00:01:25] Speaker 04:
Two, wireless detection within the trap enclosure.

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And three, wireless control signal.

[00:01:34] Speaker 01:
Wireless isn't new, is it?

[00:01:37] Speaker 01:
Wireless is in more heat, at least,

[00:01:42] Speaker 04:
Your Honor, wireless communications in Voorhees was taught.

[00:01:48] Speaker 04:
However, there was no teaching of wireless control or detection of the animal with the trap in Voorhees.

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It was merely to exchange simple data information, such as the trap trigger status and environmental data.

[00:02:07] Speaker 04:
There's no teaching in Voorhees.

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that comes even close to describing actually controlling the trap or detecting the animal, because all of the disclosures.

[00:02:18] Speaker 00:
But you would agree that wireless, it's a technology that existed in the art at the time of the invention.

[00:02:25] Speaker 04:
Your Honor, Yeager Pro does not dispute that wireless, generally the concept was known, however, is particularly implemented.

[00:02:32] Speaker 00:
What about a wireless monitoring camera?

[00:02:36] Speaker 00:
Same thing, motion detectors were also well known in the Army, correct?

[00:02:43] Speaker 04:
Yes, the critical issue in this case, Your Honor, is the combination of these known elements in a relatively simple technology that in the face of

[00:02:56] Speaker 04:
object the long time that had passed between the prior art and the patented invention, and most importantly, the commercial success and other secondary or objective indicia of non-obviousness

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guard against the hindsight that this court has warned about doing for such relatively simple technology.

[00:03:18] Speaker 03:
So I guess just moving to Jong, why was it unreasonable for the board to read the Jong reference as teaching disclosing that the remote control unit is receiving a signal from the transmitting unit wirelessly and likewise

[00:03:40] Speaker 03:
The remote control unit is sending a control signal back to the capture unit, capture control system wirelessly.

[00:03:51] Speaker 03:
It shows these broken lines with arrows.

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It specifically talks about its remote control unit as being remote, something far away, something where

[00:04:02] Speaker 03:
A person, a user can be remote from the trap.

[00:04:09] Speaker 03:
So why doesn't all of that lend to reaching a reasonable conclusion of what's going on here is that the remote control unit, like a lot of remote control units, is communicating wirelessly with other units.

[00:04:24] Speaker 04:
A couple of points in response to that question, Your Honor.

[00:04:28] Speaker 04:
First of all, there's nothing in Jong that actually discusses wireless transmission of the transmission unit signal or the capture unit signal.

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You're correct that figure one, the sole figure in this very simple five-page patent reference, does have swiggly lines.

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But there is no objective evidence that that

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discloses wireless.

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Now, a petitioner or appellee's expert did opine that because it was far away, because the remote control unit would be far away from the site, that that would suggest to a fozita that it would be wireless.

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However,

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That's based on conclusory testimony.

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And there's actually contradictory record evidence cited by Jaeger Pro that shows, for example, in the Prior Art Reisman patent, that transmission at that time actually very well meant through coax cables and hardwired, even to remote sites.

[00:05:38] Speaker 00:
Would not a person skilled in the art

[00:05:43] Speaker 00:
look at John and say it's practical to use wireless technology with this camera in the trap as opposed to using wired technology.

[00:05:57] Speaker 00:
It's impractical.

[00:06:00] Speaker 00:
I mean, Kayla sort of talks about the person's skill in the art in terms of

[00:06:06] Speaker 00:
utilizing a practical ability or practical.

[00:06:12] Speaker 00:
In this case, wouldn't it be impossible to stretch miles of line from the track to wherever the person is sitting?

[00:06:24] Speaker 04:
Certainly not impossible, Your Honor, and in fact... Impractical?

[00:06:28] Speaker 04:
In practical, not necessarily.

[00:06:31] Speaker 04:
We have transatlantic optical fiber built throughout the world.

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And here, Appoli's own expert, whenever he, as a wildlife management researcher, would be out in the field,

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He never used any wireless detection or wireless cameras during his depot.

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He testified that he wasn't aware of any studies that looked at that.

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And in fact, the prior art that's being modified here starts with the Texas boars

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combination of a rudimentary corral trap.

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So you're starting there as a person of ordinary skill and art.

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There's record evidence that shows those corral traps were intended to be left alone and just set and passively allowed for the pigs to be trapped with a tripwire.

[00:07:30] Speaker 04:
But so you start there and then you have to go to Zhang and then from Zhang, which has a completely different trap, a suspension trap for a net or cage hanging atop a pole or tree, you would then have to combine those two different traps or the technologies with Zhang and use wireless

[00:07:50] Speaker 04:
to do something that, frankly, had not been done.

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This is admittedly a novel patent in this industry.

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It had not been done for years, despite a petitioner, Appellee, claiming that these corral traps had been around since at least the 1800s, and that remote monitoring, not detection, but remote monitoring of such traps had been around at least since the 1980s.

[00:08:16] Speaker 04:
And then their prior art references all date back

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at the latest to 2007 in the patented claims here entitled to a 2010 priority date.

[00:08:28] Speaker 03:
My understanding is the board agreed with the appellees theory of motivation to combine the John Detection monitoring remote detection monitoring scheme with the Texas Bullers Corral Because it'd be a simple substitution to replace the tripwire with the remote signal system of

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And in addition to that, another motive would be you'd be able to basically better control

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the ability to capture more animals inside the corral because you'd have someone in some remote location watching animals coming closer, coming into the enclosure, and then being able to send the signal to shut the door.

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I guess the question is, again, we just have to ask ourselves, is there substantial evidence to support those kinds of fact findings?

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And the question for us now is, why are those findings unreasonable to make in this situation?

[00:09:51] Speaker 04:
Understood, Your Honor, and I appreciate your question.

[00:09:54] Speaker 04:
The question is really one of

[00:10:00] Speaker 04:
whether the expert of Appellee is entitled to any weight, given it is entirely conclusory and not based on extrinsic evidence or any other evidence other than him saying that he would combine a suspension trap with a corral trap, even though it

[00:10:22] Speaker 04:
there's record evidence that shows, from the real party of interest, Noble Research Foundation, where they argued that corral traps are different from suspension traps.

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And one of their own researchers wrote an entire PhD thesis on why suspension traps were different from corral traps.

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But the more critical point that the board erred on, we believe, is that there is no teaching

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that suggestion or anything, disclosure in the prior art with respect to detection of animals within the enclosure.

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That is not in Zhang, that is not in Texas Boars, that is not in Voorhees.

[00:11:03] Speaker 03:
That may be true, but the question is, what do you get?

[00:11:06] Speaker 03:
What's the result when you combine the Zhang monitoring detection

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communication signal system with Texas Boar's Corral.

[00:11:18] Speaker 03:
And where would you place the camera assembly?

[00:11:20] Speaker 03:
Where would you place John's camera assembly?

[00:11:23] Speaker 03:
You wouldn't place it, you know, 20 miles away from

[00:11:26] Speaker 03:
the corral you would place it in a location where you could see what is going on inside the corral and likewise near the gate so you could see you know the proximity of our pigs coming closer to the corral are they being somehow successfully lured into the corral oh now we've got four

[00:11:46] Speaker 03:
pigs in the corral, now we've got eight pigs in the corral, now we've got ten pigs, that's enough pigs, let's shut the door.

[00:11:53] Speaker 03:
I mean, that would be the resulting combination of Texas Boars and John, wouldn't it?

[00:11:59] Speaker 04:
The only record evidence besides Appaly's Conclusory Act for testimony on that fact is the patents in suit.

[00:12:08] Speaker 03:
Well, the camera wouldn't be facing away from the call, right?

[00:12:13] Speaker 04:
John only discloses monitoring, not detecting, the entire site, and it has a video capture unit and a separate capture unit, which is a trap.

[00:12:23] Speaker 04:
Those two units are shown in the figure to be separate

[00:12:27] Speaker 04:
And they're both vaguely referenced to be atop a tree or a pole, but there's nothing in John that instructs where the relative orientation or proximity of the video capture unit, which is where the animal approaches in John,

[00:12:44] Speaker 04:
not the capture unit itself.

[00:12:46] Speaker 04:
And Jong, again, teaches monitoring the entire site, not the trap enclosure, which is this much smaller than the trap.

[00:12:54] Speaker 04:
And therefore, there's nothing in the record besides conclusory Ipsy-Dixit expert testimony.

[00:13:01] Speaker 01:
That's really a well into your rebuttal time.

[00:13:04] Speaker 01:
Thank you.

[00:13:07] Speaker 04:
I would just briefly direct the court's attention to the TQ Delta and the Rendy cases on that last point I just made, where the court requires more than conclusory expert testimony to fill in a missing prior art element.

[00:13:20] Speaker 04:
Thank you.

[00:13:21] Speaker 04:
I'll reserve my time for votes.

[00:13:33] Speaker 02:
May it please the court, Scott Cummings for the appellee, and with me is my colleague Anna Kim.

[00:13:38] Speaker 02:
I believe I can quickly summarize our positions in this appeal.

[00:13:42] Speaker 02:
The appellant's arguments, and there are many, fall into what is essentially three buckets.

[00:13:47] Speaker 02:
First, with respect to the features of the claims that the prior art allegedly fails to disclose or teach, the appellant's arguments are pretty much a textbook piecemeal attack on the prior art.

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And those arguments were rejected in the proceedings below, and I believe they should be rejected by this court as well.

[00:14:04] Speaker 02:
Second, with respect to the arguments regarding the motivation to combine and a reasonable expectation of success, I think the record is clear that the references themselves, coupled with the petitioner's expert witness testimony, provide and explain the necessary motivations to combine and reasonable expectation for success.

[00:14:22] Speaker 02:
And lastly, with respect to the patent owner's secondary considerations arguments, the board correctly analyzed all the evidence that was provided to it.

[00:14:30] Speaker 02:
and correctly determined that the patent owner had failed to make out a prima facie case that it was entitled to a presumption of the nexus.

[00:14:37] Speaker 02:
And specifically, the board found that the patent owner had failed to establish the presence of the claimed control mechanism and its signal processing capabilities in the commercial product.

[00:14:49] Speaker 02:
And I believe that that type of analysis and critique of the expert witness testimony is the type of analysis that this court affirmed in the Western GECCO decision.

[00:14:58] Speaker 00:
Are you saying that the board must first have a prima facie case of obviousness before it can consider an objective condition of non-obviousness?

[00:15:07] Speaker 02:
Not entirely, Your Honor.

[00:15:08] Speaker 02:
It goes to the weight, right?

[00:15:09] Speaker 02:
So I believe that the patent owner bears the burden, if it's asking for the benefit of the presumption of the nexus, then it has the initial burden to come forward with sufficient evidence to make out a prime facial case that the claim elements are embodied in the commercial product.

[00:15:26] Speaker 03:
I guess maybe I'm a little confused when you invoke the term prima facie case, because

[00:15:33] Speaker 03:
In the context of 103, I'm customarily used to thinking of prima facie as the prima facie case of obviousness, not the prima facie case of nexus.

[00:15:43] Speaker 03:
So I think you meant to say presumption of nexus?

[00:15:47] Speaker 02:
Correct.

[00:15:48] Speaker 03:
Prima facie case of... Don't say prima facie case of the presumption, just say presumption.

[00:15:53] Speaker 02:
Okay, thank you, yes.

[00:15:55] Speaker 02:
And that sort of leads us, I think, into the Polaris decision, which is cited and relied upon by the appellant as the basis for arguing that the board somehow committed legal error in this case.

[00:16:09] Speaker 02:
And I don't believe that Polaris compels a different result in this case.

[00:16:14] Speaker 02:
And Judge Lurie, you were on that panel, I believe, Polaris decision, so you would know better than me.

[00:16:20] Speaker 02:
My reading of that case, the particular facts and the circumstances that this court was presented with, compelled it to rule the way that it did.

[00:16:29] Speaker 02:
And those facts and circumstances are definitely not present here.

[00:16:34] Speaker 02:
And I can tick off a few distinctions.

[00:16:37] Speaker 02:
One distinction is that, in this case, the board specifically identified those features of the claims that were not embodied in the commercial product.

[00:16:45] Speaker 02:
And in Polaris, that was not the case.

[00:16:47] Speaker 02:
The board simply dismissed the patent owner's evidence as conclusory.

[00:16:52] Speaker 02:
Another important difference is in Polaris, the patent owner's evidence of presumption of a nexus was not disputed by the petitioner or its expert.

[00:17:02] Speaker 02:
And in this case, there's a lot of dispute about the adequacy of the patent owner's evidence.

[00:17:08] Speaker 02:
And not only that, not only did the petitioner dispute it, their own expert's testimony contradicts their conclusion that they're entitled to a presumption of a nexus.

[00:17:18] Speaker 02:
And another distinction is in Polaris, the expert testified that they personally examined physical embodiment of the commercial product.

[00:17:28] Speaker 02:
And in this case, it's undisputed that the patent owner's expert never personally examined the product.

[00:17:34] Speaker 02:
And that was noted by the board in its decision.

[00:17:37] Speaker 01:
But as you pointed out, their product didn't contain all the limitations of the claim.

[00:17:43] Speaker 02:
Correct.

[00:17:44] Speaker 02:
By their own expert's testimony.

[00:17:48] Speaker 03:
They point to a manual, however, and say, oh, look at the figure in the manual.

[00:17:55] Speaker 03:
There's something going on here that looks like a control box that's receiving a signal.

[00:18:00] Speaker 02:
So with respect to the manual, they did cite the manual with respect to a different claim element than the claim element that we're discussing here, which in the 1470 IPR, that's claim element 1E is what the board found was missing.

[00:18:16] Speaker 02:
In the patent owner's response, they cited the manual, but they cited it for a different claim element.

[00:18:20] Speaker 02:
They cited it for 1D, not 1E.

[00:18:24] Speaker 02:
So I would argue the board would have been within its rights to claim that was a new argument raised for the first time.

[00:18:31] Speaker 02:
Did they find a surreply?

[00:18:32] Speaker 03:
Yeah.

[00:18:32] Speaker 03:
OK, well, what did they say in the surreply?

[00:18:33] Speaker 02:
In the surreply, they pointed to the manual as evidence that claim element 1E, a different claim element, was in the commercial product.

[00:18:42] Speaker 02:
But the board considered that evidence and rejected it.

[00:18:46] Speaker 02:
And the board correctly found that that manual doesn't say what the patent owner claims it says.

[00:18:53] Speaker 02:
That manual contains no information about the processing capabilities of the control mechanism, the signal processing.

[00:19:00] Speaker 02:
No information is contained in that at all.

[00:19:03] Speaker 02:
So the manual doesn't help fill in any gaps.

[00:19:07] Speaker 02:
It was relied upon for a different claim limitation in the

[00:19:11] Speaker 02:
in the patent owner's response.

[00:19:13] Speaker 02:
And importantly, it's not even the same version of the trap that they argued is a commercial product in the YouTube video.

[00:19:21] Speaker 02:
If you look at the YouTube video, which was never admitted into evidence and never authenticated, but if you did look at that video, what you see is a description of the use of a cell phone by the user to trigger the trap, which is the display device in the claims.

[00:19:36] Speaker 02:
If you look at the manual, there is no such thing.

[00:19:38] Speaker 02:
There is no display device.

[00:19:40] Speaker 02:
It's a remote transmitter like a garage door opener.

[00:19:42] Speaker 02:
It's a long-range transmitter.

[00:19:44] Speaker 02:
There's no display device.

[00:19:45] Speaker 02:
It's not even the same model trap.

[00:19:49] Speaker 02:
And there's no evidence or discussion about it's the same features in common with the YouTube video.

[00:19:55] Speaker 02:
There's none of that.

[00:19:56] Speaker 02:
So I don't believe that the manual helps their case.

[00:20:01] Speaker 02:
There's some other distinctions I could point to relative to Polaris.

[00:20:09] Speaker 02:
One of them is with respect to the 1471 IPR, in the patent owner's response, they represented that they were mapping claim one of the 339 patent to the commercial product, but that's not what they did.

[00:20:22] Speaker 02:
They mapped claim one of the 228 patent to the commercial product.

[00:20:26] Speaker 02:
Wrong patent.

[00:20:28] Speaker 02:
And additionally, in their patent owner's responses in both cases, they never cited their expert witness's testimony.

[00:20:34] Speaker 02:
They didn't rely upon any expert witness testimony in their patent owner's responses.

[00:20:37] Speaker 02:
They first referred to that in the SIR reply.

[00:20:40] Speaker 02:
And again, I think the board would have been within its rights to say that was a new argument raised for the first time in a survey plot.

[00:20:48] Speaker 02:
They considered their evidence anyway.

[00:20:49] Speaker 02:
I think even with all of these issues and problems with their case and below, the board went out of their way to consider all of the evidence that they presented.

[00:20:59] Speaker 02:
And like I said, I believe the board would have been within its rights to refuse to do so.

[00:21:05] Speaker 02:
But with respect to that 1471 IPR, I would point out to the court that there is an additional finding

[00:21:10] Speaker 02:
of the board that the patent owner's evidence was inadequate because of this mistake with the claim in the patent owner's response.

[00:21:19] Speaker 02:
And even the patent owner's expert in their declaration and the patent owner's expert in the 1471 IPR did refer to the correct patent in the declaration.

[00:21:33] Speaker 02:
But even then, when it gets to the critical limitation of where this control mechanism is recited in the claims, the patent owner's expert misrepresented what the claim requires.

[00:21:42] Speaker 02:
It was completely wrong in the declaration.

[00:21:45] Speaker 02:
So even their expert in 1471 IPR didn't map correctly the claim to the product.

[00:21:52] Speaker 02:
And again, the board recognized that in their decision, and yet they compared the expert's testimony to what the claim actually requires and found the same deficiency.

[00:22:03] Speaker 02:
So that's basically what I had to say about Polaris, and I'll spare your honors a long speech for me today.

[00:22:09] Speaker 02:
If there's any other issues you would like to discuss, I'm happy to discuss them with you.

[00:22:16] Speaker 01:
Lovely time.

[00:22:20] Speaker 01:
No one ever loses points if I surrender at times.

[00:22:33] Speaker 04:
Thank you, Your Honors.

[00:22:35] Speaker 04:
I will be brief, but Polaris is on all fours here in controlling.

[00:22:41] Speaker 04:
Yeager Pro did far more than what was required by the expert in Polaris, where the expert submitted a six paragraph declaration just saying he reviewed

[00:22:53] Speaker 04:
over 10 different Razor ATV vehicle products and found them co-extensive with the claims.

[00:23:02] Speaker 04:
And he just referenced the claims broadly.

[00:23:04] Speaker 04:
There was no claim element, no claim chart.

[00:23:07] Speaker 04:
the court found that in Polaris that this court precedent does not require more than that, does not require limitation by limitation analysis of coextensiveness as the board required improperly here, nor does it even require documentary evidence.

[00:23:25] Speaker 04:
All it required in that case was the experts

[00:23:28] Speaker 04:
testimony.

[00:23:29] Speaker 04:
The manual here shows exactly the control box.

[00:23:35] Speaker 04:
It was formal refunction for the board to basically interpret the expert's imprecise, unfortunate language as far as where the control signal went to the control box, which is clearly shown in the video that he reviewed, which was part of his review of the product.

[00:23:56] Speaker 04:
And the Monsanto case says that that is completely acceptable.

[00:24:00] Speaker 04:
Expert testimony does not require first review.

[00:24:03] Speaker 04:
So Polaris is controlling, and we exceeded the requirements there.

[00:24:07] Speaker 04:
I'll just say in conclusion that to invalidate a hardworking military veteran's patent, as the board did here, simply requires more rigor under this court's precedent.

[00:24:21] Speaker 04:
Any patent does, for that matter.

[00:24:23] Speaker 04:
As this court said in Inre Dembizic,

[00:24:26] Speaker 04:
The best defense against subtle but powerful attraction of hindsight bias, obviousness, is rigorous application of showing of teaching or motivation to combine prior art references.

[00:24:38] Speaker 04:
Here, the board simply brushed aside Mr. Pinkston's life work, and it should be reversed.

[00:24:43] Speaker 01:
Thank you, counsel.