[00:00:00] Speaker 02:
We're switching technologies now, and we have Medtronic versus Teleflex Life Sciences, 2020-2, 1605 and 1606.

[00:00:14] Speaker 02:
There's Amati when you're ready.

[00:00:17] Speaker 04:
May it please the court, Brittany Amati on behalf of Medtronic.

[00:00:20] Speaker 04:
There's no dispute that Contos discloses each and every step recited in claim one of the 413 patents.

[00:00:27] Speaker 04:
The board nonetheless found the challenge claims patentable because Contos discloses single step, step 1F, out of order.

[00:00:35] Speaker 04:
However, the claims do not require step 1F to be performed in the recited order.

[00:00:40] Speaker 04:
And even if they did, the prior art rendered the performance of that step in the recited order obvious in any event.

[00:00:47] Speaker 02:
How about step one F, which means inserting the device into and through the continuous lumen alongside of the substantially rigid portion, which strongly suggests that that latter is already there, so it's sequential.

[00:01:07] Speaker 04:
Your Honor, alongside the substantially rigid portion, we agree requires the interventional cardiology device to be inserted into the guide catheter alongside the substantially rigid portion.

[00:01:19] Speaker 04:
However, that doesn't preclude them being inserted simultaneously into the guide catheter.

[00:01:25] Speaker 04:
You could have the interventional cardiology device inside of the coaxial guide catheter and both of those components being inserted together alongside each other into the

[00:01:37] Speaker 04:
standard guide catheter and that would satisfy the claim.

[00:01:42] Speaker 04:
Yes your honor that's correct.

[00:01:45] Speaker 04:
And so your honor with respect to the claim language the key issue here is whether or not the claims require the interventional cardiology device.

[00:01:54] Speaker 00:
Isn't it strange though that the claim calls for inserting the ICD alongside the substantially rigid portion of the coaxial guide catheter.

[00:02:04] Speaker 00:
I mean I would think

[00:02:06] Speaker 00:
you would be in possibly better ground if it was inserting the ICD alongside the very, you know, distal end or the flexible tip portion of the coaxial guide catheter.

[00:02:22] Speaker 00:
But instead, you're inserting it alongside kind of the back part of the coaxial catheter, the substantially rigid portion.

[00:02:33] Speaker 00:
So if we were to agree with you, that would necessarily suggest you've already inserted the flexible tip portion of the coaxial guide catheter into the standard guide catheter, and now as the substantially rigid portion back part of the coaxial guide catheter is being inserted, then you at the same time simultaneously insert the ICD.

[00:02:56] Speaker 00:
That's how I'd read the claim language if I were to agree with your understanding of how the steps would be ordered.

[00:03:04] Speaker 04:
Your Honor, I respectfully disagree.

[00:03:07] Speaker 00:
I said a lot of words.

[00:03:08] Speaker 00:
Did you even follow what I said?

[00:03:10] Speaker 00:
I believe so, Your Honor.

[00:03:12] Speaker 00:
OK.

[00:03:13] Speaker 00:
So that sounds, I don't know, very peculiar to actually perform this type of operation in that manner.

[00:03:21] Speaker 00:
So why, even if I were to agree with you that these could be done simultaneously, we're still not in a situation that is very strange.

[00:03:32] Speaker 04:
Your Honor, the claim just requires that the interventional device be inserted alongside the substantially rigid portion.

[00:03:41] Speaker 04:
Both of those portions can be inserted into the guide catheter at the same time.

[00:03:46] Speaker 04:
It doesn't preclude that.

[00:03:48] Speaker 04:
And I think what's notable here is had the applicant wanted to claim a claim limitation,

[00:03:53] Speaker 04:
where it requires sequential insertion of each component, it could have done that.

[00:03:59] Speaker 04:
And in fact, it did do that in the claims of the 116 patent.

[00:04:03] Speaker 00:
But I guess, don't you want us to believe that this claim is open enough that you're inserting the ICD at the same time you're inserting the flexible tip portion of the coaxial guide catheter?

[00:04:17] Speaker 00:
They're both being inserted at the same time.

[00:04:20] Speaker 04:
The flexible tip portion and the substantially rigid portion are connected to each other.

[00:04:24] Speaker 00:
Yes, I know that.

[00:04:25] Speaker 00:
But in terms of timing, in terms of insertion of these two instruments into the standard guide catheter, you would want them to be both inserted at the same time.

[00:04:36] Speaker 00:
They could be inserted at the same time.

[00:04:38] Speaker 00:
The beginning pieces of both of those tools are being inserted at the same time into the larger standard guide catheter.

[00:04:45] Speaker 04:
They could be inserted at the same time as the flexible tip portion.

[00:04:49] Speaker 04:
Or it could be inserted at the same time as the reinforced portion, which is in the middle.

[00:04:54] Speaker 04:
Or it could be inserted at the same time as the substantially rigid portion.

[00:04:57] Speaker 04:
So long as it's inserted alongside the substantially rigid portion, that would meet the claim limitation.

[00:05:05] Speaker 04:
So in other words, it could be inserted how far into the coaxial guide catheter is left open by the claim limitation.

[00:05:13] Speaker 04:
There's no restriction on that.

[00:05:15] Speaker 04:
So long as both components are being inserted into the standard guide catheter,

[00:05:19] Speaker 04:
alongside the substantially rigid portion.

[00:05:23] Speaker 03:
A lot of both sides are throwing around a lot of cases in terms of finding all the cases where they say you have to perform it in sequence and others that say you don't.

[00:05:32] Speaker 03:
Is there a case, I mean, in this case, as Judge Laurie pointed out, you agree that all of the steps 1 through 1A through or 1C through 1F

[00:05:44] Speaker 03:
and a sub-part and then you divide one F into a sub-part and you say one of them has to be performed sequentially and the other does not.

[00:05:52] Speaker 03:
That's kind of an odd thing.

[00:05:53] Speaker 03:
I mean it's either makes sense in a way for it to be an all or nothing thing.

[00:05:59] Speaker 03:
Either the steps one through F are all sequential or they're not, right?

[00:06:06] Speaker 04:
Your honor, in this court's altera decision, the court said that even where other steps are required to be performed in the recited order, in that case, I believe there's a limitation that said, if x is done, then y. That fact did not mean that other recited steps had to be performed in the recited order.

[00:06:25] Speaker 04:
And here where you have a limitation that does not, in the claim language overall, require it to be performed in a recited order, in contrast to other limitations where you have the distal,

[00:06:35] Speaker 04:
and their flexible tip portion in the substantial.

[00:06:38] Speaker 03:
But it does have the words that Judge Chen was referring to, alongside.

[00:06:42] Speaker 03:
And so you interpret it.

[00:06:43] Speaker 03:
It doesn't clearly say that it doesn't have to be performed in order.

[00:06:48] Speaker 03:
It has alongside.

[00:06:49] Speaker 03:
And you choose to construe alongside to not requiring sequentially.

[00:06:54] Speaker 03:
And the other side says, no, alongside the most natural reading of that is that it is sequential.

[00:07:01] Speaker 03:
Right.

[00:07:02] Speaker 04:
Well, I think the important thing to keep in mind is that this court has said in the Altair case that unless the claim language requires it must be performed in a recited order, then there's a presumption that there's no order required.

[00:07:14] Speaker 04:
And there's nothing in the claim language that requires that particular step to be performed.

[00:07:18] Speaker 00:
Well, what about just the overall step F?

[00:07:21] Speaker 00:
I mean, we're looking at it asks or requires the ICDA to be

[00:07:28] Speaker 00:
inserted alongside first the substantially rigid portion, and then you advance the ICD through and beyond the lumen of the flexible tip portion.

[00:07:41] Speaker 00:
So when you read all of this together, I mean, it feels quite natural to think first that the entire coaxial guide catheter is already in, and it's in all the way.

[00:07:54] Speaker 00:
And then when you insert the ICD, you're of course going to be first inserting it alongside the substantially rigid portion.

[00:08:05] Speaker 00:
And then after that, you're going to be advancing that ICD through and beyond the flexible tip portion.

[00:08:12] Speaker 00:
And so just to me, it feels like the most natural reading is this last step is describing the journey of the ICD.

[00:08:22] Speaker 00:
We're first going to pass alongside the substantially rigid portion of the coaxial guide catheter and then guess what, after that we're going to go right on through the flexible tip portion and beyond.

[00:08:34] Speaker 02:
I'm sorry, past the lesion.

[00:08:37] Speaker 02:
Past the lesion, which implies it's already in the body.

[00:08:41] Speaker 04:
Your Honor, we would agree that advancing into contact with the lesion has to occur after

[00:08:46] Speaker 04:
the entire assembly is within the patient's body.

[00:08:50] Speaker 04:
But that doesn't require that the inserting step.

[00:08:53] Speaker 04:
And I think in cases like this court's Kenneka case, where the court said where there's two active limitations, which we believe there are two active limitations within step 1F, inserting and advancing.

[00:09:04] Speaker 04:
If those are two active steps, then they have to be looked at as individual active steps in the method.

[00:09:10] Speaker 04:
And here, there's nothing in the claims that requires inserting to occur after the coaxial guide hacker has been inserted.

[00:09:18] Speaker 04:
And I think these claims are in contrast to, for example,

[00:09:21] Speaker 04:
claim 25 of the 116 patented issue in the next appeal, where the applicant expressly stated that the insertion takes place while maintaining the distal end of the extension catheter positioned beyond the distal end of the guide catheter.

[00:09:36] Speaker 04:
There's no similar language here.

[00:09:37] Speaker 04:
And so we believe that the claims are properly construed in accordance with this court's case law not to require a recited order.

[00:09:47] Speaker 04:
But even if this court were to require an order,

[00:09:50] Speaker 04:
The claims nonetheless are unpatentable over the Contos reference.

[00:09:55] Speaker 04:
Teleflex concedes in its red brief at page 39 that there's no dispute that Contos discloses inserting a coaxial guide catheter first before inserting the cardiology device.

[00:10:07] Speaker 04:
And there's no real dispute that Contos also discloses advancing the coaxial guide catheter

[00:10:12] Speaker 04:
before advancing the cardiology.

[00:10:14] Speaker 03:
There's some confusion on Kato's right in this case because of the sedations that you had in the petition and the references to Kato's and the ones you're using here and you say that difference doesn't matter but I'm not clear why it wouldn't matter if you were to rewind portions of Kato's flow

[00:10:33] Speaker 03:
and relying on different portions elsewhere.

[00:10:37] Speaker 03:
Doesn't it matter?

[00:10:39] Speaker 04:
Well, I think what's important here is the question here is whether, with contos clearly teaching and inserting, and there's no dispute that we pointed to that language in column seven of contos, inserting first.

[00:10:51] Speaker 04:
We have our expert's testimony, which was unrebretted, that when a physician inserts the interventional cardiac coaxial guide catheter before inserting the interventional cardiology device,

[00:11:03] Speaker 04:
then the physician would advance it first as well.

[00:11:06] Speaker 00:
The real question here... But does Contos teach advancing the distal portion of its coaxial guide catheter beyond the distal end of its standard guide catheter before you insert the ICD?

[00:11:21] Speaker 04:
So Contos teaches inserting first, and it also teaches... I know, but I have a more specific question.

[00:11:27] Speaker 00:
Let me repeat it again.

[00:11:28] Speaker 00:
Part of the claim absolutely requires that the distal end of the coaxial guide catheter not only be inserted before the ICD,

[00:11:38] Speaker 00:
but also be inserted beyond the distal end of the standard guide catheter before the ICD gets inserted.

[00:11:46] Speaker 00:
And so my question is, does Contos teach that?

[00:11:50] Speaker 00:
My understanding is Contos teaches its coaxial guide catheter to be inserted all the way up until the end, the distal end of the standard guide catheter, but it doesn't go beyond that.

[00:12:01] Speaker 00:
the distal end of the standard guide catheter.

[00:12:03] Speaker 00:
Can you clarify for me whether it goes beyond the standard, the distal end of the standard guide catheter?

[00:12:11] Speaker 04:
The interventional cardiology device?

[00:12:13] Speaker 00:
No, its respective coaxial guide catheter.

[00:12:19] Speaker 04:
Contras does teach inserting and advancing

[00:12:22] Speaker 04:
the coaxial catheter beyond the distal end of the standard catheter before you insert the ICD.

[00:12:33] Speaker 04:
It does not expressly teach inserting

[00:12:37] Speaker 04:
coaxial guide catheter and advancing it beyond the distal tip before inserting the ICD.

[00:12:43] Speaker 04:
However, Dr. Brecker testified, and it was unrebutted, that a skilled artisan inserting first would also advance first.

[00:12:51] Speaker 04:
And it really comes down to, if you're a physician and you're inserting first, which Contos says expressly teach, are you going to insert and stop right at the edge or the distal end of the standard guide catheter, then insert the interventional device

[00:13:05] Speaker 04:
then advance them together?

[00:13:06] Speaker 04:
Or are you going to insert and advance before you insert the cardiology device?

[00:13:13] Speaker 04:
And our expert, a physician, testified that physicians would do the latter.

[00:13:16] Speaker 04:
And so the real question here is, if you have inserting first, advancing first, both expressly taught in the Contos reference, whether a skilled artisan would insert and advance first?

[00:13:29] Speaker 04:
And Dr. Brecker testified, and that was unrebutted, that a skilled artisan would do so.

[00:13:34] Speaker 03:
Can I just ask you one quick housekeeping question?

[00:13:37] Speaker 03:
I think both sides cited as related cases to pending district court cases.

[00:13:43] Speaker 03:
Do you happen to know how they'll be affected by this appeal?

[00:13:47] Speaker 04:
Yes, Your Honor.

[00:13:48] Speaker 04:
So both this patent and the next patent are both asserted in the district court case, I believe, claims 1, 4, and 13.

[00:13:58] Speaker 04:
And that case is ongoing.

[00:14:00] Speaker 04:
Thank you.

[00:14:01] Speaker 04:
Thank you.

[00:14:16] Speaker 02:
Mr. Lodd?

[00:14:20] Speaker 02:
Did I pronounce your name correctly?

[00:14:21] Speaker 01:
Lodd, yes.

[00:14:23] Speaker 01:
Thank you, Judge Laurie.

[00:14:25] Speaker 01:
May it please the court?

[00:14:26] Speaker 01:
I'll just start where we left off with the Contos obviousness case.

[00:14:30] Speaker 01:
I think the critical point is the one that Ms.

[00:14:33] Speaker 01:
Amati agreed to your question, Judge Chen, which is that Contos doesn't teach

[00:14:38] Speaker 01:
inserting, advancing all the way to the end of the guide catheter, and then inserting the treatment device.

[00:14:44] Speaker 01:
You have to put two different pieces of contos together.

[00:14:47] Speaker 01:
There would have to be a motivation to modify contos to do that that way.

[00:14:52] Speaker 01:
And not only did the board not find such a motivation, but that wasn't even Medtronic's argument below.

[00:14:57] Speaker 01:
If you look at Paige.

[00:15:00] Speaker 00:
The other side just argued there's unrebutted testimony from their expert saying that it'd be an obvious thing to do.

[00:15:06] Speaker 01:
That's not correct.

[00:15:08] Speaker 01:
The statement in question is at page 14167 of the appendix.

[00:15:14] Speaker 01:
This is for Dr. Brecker's declaration below.

[00:15:19] Speaker 00:
Did you say 14167?

[00:15:21] Speaker 00:
Yes.

[00:15:22] Speaker 01:
It's in the second volume of the appendix.

[00:15:24] Speaker 01:
No, sorry.

[00:15:24] Speaker 01:
It's at the end of the first.

[00:15:29] Speaker 00:
He's trying to volunteer.

[00:15:32] Speaker 00:
This is all the Contos-Adams discussion.

[00:15:36] Speaker 01:
That's right.

[00:15:36] Speaker 01:
That's what there was in Dr. Brecker's testimony in the record below.

[00:15:41] Speaker 01:
Part of the confusion here is that Medtronic was focusing on its claim construction argument, saying that the steps don't have to be performed in order.

[00:15:49] Speaker 01:
And if their construction holds, then Contos anticipates at least claim one.

[00:15:54] Speaker 01:
But when it came to obviousness, they said, well, Kantos either teaches this limitation, or it would have been obvious in combination of Kantos and atoms.

[00:16:02] Speaker 01:
There was no Kantos plus Kantos combination, so to speak.

[00:16:06] Speaker 01:
So you don't see that in paragraphs 202 or 203 or 204 of Dr. Brecker's testimony.

[00:16:13] Speaker 01:
And I would just also note this.

[00:16:15] Speaker 01:
Paragraph 204 seems to be talking about how physicians perform these procedures today Over a decade after the invention when devices are on market and devices like the guideline or teleplexes Inventive device are being used to perform these procedures in practice Let me ask you what we didn't have time to ask your friend about this but on the combination of atoms and contacts and

[00:16:40] Speaker 01:
Yes.

[00:16:41] Speaker 03:
I mean the board just says it does it have different fundamental purposes.

[00:16:45] Speaker 03:
I mean the assertion in the petition was that they're directed to the same type of device, same field of endeavor and reasonably pertinent to the problem of the inventors of the 413.

[00:16:55] Speaker 03:
Isn't that sufficient?

[00:16:58] Speaker 01:
It's not, Your Honor.

[00:16:59] Speaker 01:
And I'll explain why.

[00:17:01] Speaker 01:
So first of all, the argument was that they solved the same problem in the same way, which is not the case.

[00:17:07] Speaker 01:
They solved different problems in different ways.

[00:17:10] Speaker 01:
And in particular, again, this is a consequence of the- Do they need to?

[00:17:14] Speaker 03:
Under the law, do they have to solve the same thing in order to-

[00:17:18] Speaker 03:
have to establish a motivation to combine, do you need to solve the same problem the same way?

[00:17:23] Speaker 01:
No, but that was Medtronic's argument, is my point.

[00:17:26] Speaker 01:
So the board was answering Medtronic's argument that they would be combined simply because they're both used in PCI procedures, for example.

[00:17:33] Speaker 01:
The combination falls apart when you think about it this way.

[00:17:37] Speaker 01:
Contos is about inserting a balloon catheter and using a little protective catheter around that to sort of reinforce and protect the balloon as it travels down the guide catheter into the body.

[00:17:48] Speaker 01:
Adams has a completely different method, which is not even about inserting a balloon catheter in the first instance.

[00:17:56] Speaker 01:
It's to insert this guide seal to seal off an artery, stop the blood flow, and then put in a distal embolic protection device.

[00:18:05] Speaker 01:
So they're really apples and oranges was the board's point.

[00:18:08] Speaker 01:
And the board concluded, and there was substantial evidence for this, that there just was no motivation to combine

[00:18:15] Speaker 01:
to, I should say, look to atoms to modify the order of steps and contours.

[00:18:24] Speaker 01:
I'd like to speak a little bit about the claim construction issue because I think that has the most consequences across the appeal.

[00:18:32] Speaker 01:
Judge Chen, I think you asked exactly the critical question, which is why would the patent say alongside the substantially rigid portion if what it really meant was that the interventional cardiology device could be inside the flexible tip portion?

[00:18:46] Speaker 01:
You wouldn't have chosen those words if you were to patent D and that was your meaning.

[00:18:50] Speaker 01:
Also in that case, as in Ito and in the Contos references, if you preloaded the interventional cardiology device into the lumen, which would be the flexible tip portion, it actually goes in before the substantially rigid portion.

[00:19:04] Speaker 01:
It's not even at the same time as.

[00:19:07] Speaker 01:
and moreover this is a broader point but alongside in this claim does not mean at the same time as again if you were the patentee looking to claim simultaneous insertion you would have said simultaneously with or at the same time as instead of saying

[00:19:23] Speaker 01:
Alongside of right.

[00:19:25] Speaker 00:
I guess the other side argument must be the claim is open open to Doing it in sequence.

[00:19:32] Speaker 00:
It's shown in the claim as well as doing things out of order or simultaneously and and so in that way They're not trying to limit themselves to simultaneous insertion

[00:19:44] Speaker 01:
I suppose that's right.

[00:19:45] Speaker 01:
Metronik's not arguing that's the only interpretation.

[00:19:48] Speaker 01:
They're arguing that that is an interpretation.

[00:19:50] Speaker 01:
It's simply just unnatural.

[00:19:52] Speaker 01:
The logic and grammar of the claims demonstrates that the steps are to be performed in order.

[00:19:58] Speaker 01:
Each of the steps 1, D, E, and F builds upon the last step.

[00:20:02] Speaker 03:
Why does it matter?

[00:20:03] Speaker 03:
As I asked your friend, even if the other limitations have to be performed in an order, why can't this one not be?

[00:20:12] Speaker 03:
And you're talking about the most natural reading, I don't know, alongside could mean what they're saying it means, right?

[00:20:21] Speaker 03:
Simultaneous.

[00:20:22] Speaker 01:
I think outside the context of this claim, alongside could mean simultaneous.

[00:20:27] Speaker 01:
But let me be a little bit more specific to use the language of the cases.

[00:20:30] Speaker 01:
The logic and grammar of the claims defies that interpretation.

[00:20:35] Speaker 01:
You have three key pieces of context, I think, from the claims.

[00:20:38] Speaker 01:
The first is the antecedent basis.

[00:20:41] Speaker 01:
So step 1b says that you're inserting a substantially rigid portion.

[00:20:45] Speaker 01:
That's the antecedent basis for the substantially rigid portion in the claim limitation that's in dispute.

[00:20:52] Speaker 01:
And step 1D also says that the coaxial guide catheter is longer than the guide catheter such that when you advance it in step 1E, even though the

[00:21:05] Speaker 01:
The far end of the coaxial guide catheter is sticking out the far end of the guide catheter.

[00:21:10] Speaker 01:
The sort of rear end of the device is sticking out of the rear end of the hemostatic valve and actually outside the patient.

[00:21:16] Speaker 01:
And then 1F follows directly on that and says you're inserting the cardiology device alongside the substantially rigid portion.

[00:21:24] Speaker 01:
When they're laid out in that order, the natural understanding of that is that each step is referring to the previous one.

[00:21:30] Speaker 01:
So that's one of three context clues.

[00:21:33] Speaker 01:
The second is the advancing step, which I think you asked about, Your Honor, Judge Lurie.

[00:21:38] Speaker 01:
The fact that inserting and advancing are in the same paragraph of the claim, effectively within one step, is a very good clue that the claim is talking about performing the inserting part after that coaxial guide catheter is already in place.

[00:21:54] Speaker 01:
Because you can't do the advancing part of that step unless the coaxial guide catheter is already in place.

[00:22:00] Speaker 01:
in the artery to be treated.

[00:22:03] Speaker 01:
And the final point I would raise here as a logic and grammar of the claims point, Your Honor, is the fact that the other steps are all in order.

[00:22:12] Speaker 01:
There are two cases that we cite in our briefs, the M-Formation case,

[00:22:19] Speaker 01:
and Hyterra Communications.

[00:22:21] Speaker 01:
Both of those are cases from this court construing order of steps limitations.

[00:22:25] Speaker 03:
What about the case your friends like?

[00:22:27] Speaker 01:
Altairis?

[00:22:29] Speaker 01:
So Altairis is a different case in that it's a computer method and there's a first sort of a testing step.

[00:22:35] Speaker 01:
And then there are two steps that say, if the result of the testing step is X, do this.

[00:22:39] Speaker 01:
And if it's that, do that.

[00:22:41] Speaker 01:
But other than that, there was no indication that the claim steps have to be in order.

[00:22:46] Speaker 01:
So it is not, in every case, going to be an all or nothing proposition.

[00:22:50] Speaker 01:
You could have a claim, like in all tiras, where some steps naturally have to follow others.

[00:22:55] Speaker 01:
But as a whole, there are other parts of the method you can pick and choose.

[00:22:59] Speaker 01:
Um, but if you look at M formation and high terror communications, you'll see this court has in past cases relied on the fact that every other step in the claim is sequential to say, well, wouldn't it be odd if this one step was an outlier?

[00:23:14] Speaker 01:
And I think that's exactly what you would have here under, I think electronic would agree.

[00:23:19] Speaker 01:
Every step of the claim has to be performed in order.

[00:23:22] Speaker 01:
And in fact, even the second half of step one app has to be performed in order.

[00:23:27] Speaker 01:
But just this one part can be done totally out of order.

[00:23:40] Speaker 02:
Anything further?

[00:23:42] Speaker 01:
Nothing further from me, Your Honor.

[00:23:43] Speaker 01:
I'll see if I can take my time.

[00:23:44] Speaker 01:
Thank you.

[00:23:46] Speaker 02:
You are not out of order for opening it at this time.

[00:23:53] Speaker 02:
Ms.

[00:23:53] Speaker 02:
Amati.

[00:24:00] Speaker 04:
Thank you, Your Honor.

[00:24:00] Speaker 04:
I'll just make three points in response.

[00:24:03] Speaker 04:
The first point is that under this court's decision in Altares, you must look to the claim language to determine if, as a matter of logic or grammar,

[00:24:11] Speaker 04:
the claim or each step must be performed in the order recited.

[00:24:16] Speaker 04:
And if there's nothing in the claim that requires it to be performed in the order recited or in the specification, and if there's not, then the steps can be performed in any order.

[00:24:26] Speaker 04:
The second point that I'll make is in response to Mr. Laude's suggestion that there is an anticipation

[00:24:33] Speaker 04:
argument with respect to the Contos reference that's incorrect and the appendix APPX 14135 Medtronic argued that it was Contos plus the knowledge of an ordinary artisan and that APPX 18060 in paragraph 200

[00:24:50] Speaker 04:
Our expert, Dr. Brecker, explained that an ordinary artisan who was inserting first would advance first as well before inserting the interventional cardiology device.

[00:25:00] Speaker 04:
There were two bases of obviousness here, Contos plus an ordinary artisan's knowledge and Contos plus Adams.

[00:25:08] Speaker 04:
And with respect to the ordinary artisan's knowledge, there was no contrary expert testimony from the other side's expert that a skilled artisan who was inserting first, as Contos expressly teaches, and there's no dispute about that,

[00:25:20] Speaker 04:
would also advance first before inserting the interventional.

[00:25:23] Speaker 00:
I'm sorry.

[00:25:24] Speaker 00:
Mr. Loud showed us one piece of the JA, which clearly is a Comtox-Adams combination for 103.

[00:25:38] Speaker 00:
What was the site for the other page that, in your view, shows this modified Contos alone?

[00:25:45] Speaker 04:
Yes, Your Honor.

[00:25:45] Speaker 04:
It's at APPX 14166, and that's paragraph 200 of Dr. Barker's declaration.

[00:25:52] Speaker 04:
He stated that when a physician separately inserts an extension catheter and a paragraph.

[00:25:57] Speaker 00:
I'm sorry.

[00:25:57] Speaker 00:
Where?

[00:25:58] Speaker 00:
Oh, OK.

[00:25:58] Speaker 00:
It's in the second paragraph of the contract.

[00:26:00] Speaker 00:
Go ahead.

[00:26:01] Speaker 04:
Paragraph 200.

[00:26:03] Speaker 04:
She states, when a physician separately inserts an extension catheter and a therapy catheter, they do so by extending this extension catheter distal to the guide catheter before inserting the therapy device.

[00:26:15] Speaker 04:
And this is all in the context of discussing contos and an ordinary artisan's knowledge.

[00:26:20] Speaker 04:
And then later on, Dr. Brucker explains in paragraph 204 why a skilled artisan would do so and gives several reasons from the perspective of a physician, interventional cardiology physician,

[00:26:33] Speaker 04:
why they would do so, and that's laid out in paragraph 204.

[00:26:36] Speaker 04:
So we believe that testimony was unrebutted.

[00:26:39] Speaker 04:
There was no testimony on the other side explaining that a skilled artisan would not insert and advance.

[00:26:45] Speaker 04:
And in fact, it makes sense for a skilled artisan to do that, because it's one motion inserting and advancing before doing a second motion, as opposed to four separate steps in a surgery.

[00:26:57] Speaker 04:
And the last point I'll make is with respect to the Contos and Adams combination.

[00:27:02] Speaker 04:
Judge Pursue had asked about this particular intended purpose of Adams.

[00:27:06] Speaker 04:
Here, Adams, Medtronic was relying on Adams for the teaching of that sequential insertion and advancement.

[00:27:13] Speaker 04:
And it wasn't disputed that Adams taught that sequence of steps.

[00:27:17] Speaker 04:
And so there was no dispute that Adams was also used in interventional cardiology procedures and taught the sequence of steps.

[00:27:25] Speaker 04:
And our expert explained, again,

[00:27:27] Speaker 04:
why a skod artisan should perform the steps in that sequence if Contos did not