[00:00:00] Speaker 03:
cases number 22, 1865, Sunova AG versus Med-El electronic.

[00:00:11] Speaker 03:
Okay, Mr. Cernel.

[00:00:13] Speaker 04:
Good morning.

[00:00:14] Speaker 04:
May it please the court.

[00:00:16] Speaker 04:
This is an appeal focused solely on anticipation.

[00:00:19] Speaker 04:
There's no obviousness fallback involved.

[00:00:23] Speaker 04:
and involves the board's failure to properly apply this court's precedence in doing its anticipation analysis.

[00:00:31] Speaker 04:
Anticipation is, of course, a straightforward yet rigorous... Do you apply a precedence how?

[00:00:38] Speaker 04:
Several.

[00:00:39] Speaker 04:
First of all, it's a two-step process, strict identity.

[00:00:42] Speaker 04:
First, you construe the claims.

[00:00:44] Speaker 04:
Then you apply the construed claim to the single prior art reference.

[00:00:49] Speaker 04:
Here, there was an adoption of a claim construction in the first instance in the final written decision.

[00:00:56] Speaker 04:
And then effectively, the court failed to meaningfully apply it to the single prior art reference.

[00:01:02] Speaker 04:
The construction was the term hydrophobic and required that the contact angle between a water droplet and the surface exceeds 90 degrees.

[00:01:13] Speaker 04:
All we're going to find in the board's analysis.

[00:01:16] Speaker 03:
The prior art showed Teflon coating.

[00:01:18] Speaker 03:
Teflon coating is hydrophobic.

[00:01:21] Speaker 03:
Your own patent says that.

[00:01:23] Speaker 04:
The prior art and our patent says that a slab of Teflon can have a, and does have, and we do not dispute, has a contact angle of 90 degrees.

[00:01:35] Speaker 04:
What we're talking about is the surface of the cover element in Meyer.

[00:01:40] Speaker 04:
and where the board found the 90 degrees sort of inherent teaching of 90 degrees that was then placed into the Myer reference.

[00:01:48] Speaker 04:
If you look at that reference, Kenningsburg, that's the only one cited at appendix 2425 in the board's decision talking about 90 degrees.

[00:01:57] Speaker 04:
If you look at Kenningsburg in detail, it talks about how contacting was actually a unique function involving both the surface treatment, a Teflon surface treatment,

[00:02:08] Speaker 04:
but also the substrate to which it's applied.

[00:02:10] Speaker 04:
You can think about this in the context of, if I put a hydrophobic... There's nothing in your patent about that, right?

[00:02:16] Speaker 04:
Again, our patent is talking about putting a hydrophobic coating on something to achieve... The answer is there's nothing in the patent about that, right?

[00:02:23] Speaker 03:
It's being dependent on the purpose.

[00:02:26] Speaker 04:
A person of skill in the art recognizes, and you look to Kenningsburg for this explanation,

[00:02:33] Speaker 04:
that it's a unique function of both treatment and the substrate.

[00:02:37] Speaker 04:
You can think about putting a hydrophobic coating on, for example, we put this in our briefs, a screen door versus a glass door.

[00:02:44] Speaker 04:
You're going to get a very different contact angle with a Teflon coating on a screen door versus a glass door.

[00:02:50] Speaker 04:
And that's what we have here.

[00:02:51] Speaker 04:
The Meyer cover element.

[00:02:53] Speaker 04:
But your claims don't require any such analysis.

[00:02:56] Speaker 04:
But the board's claim construction does.

[00:03:00] Speaker 04:
It talks about,

[00:03:01] Speaker 04:
the contact angle between the water droplet with the surface exceeds 90 degrees.

[00:03:07] Speaker 04:
You have to look at the actual surface this is being applied to.

[00:03:11] Speaker 04:
And let's look at this Meyer cover element.

[00:03:13] Speaker 04:
The Meyer cover element is a porous, we call it a mesh-like cover element that you put over the top of a microphone in a hearing aid.

[00:03:24] Speaker 04:
And so there needs to be acoustic ingress

[00:03:27] Speaker 04:
and air ingress into this area.

[00:03:31] Speaker 04:
This is a mesh surface.

[00:03:34] Speaker 04:
And there's no analysis here that putting in what's described in Meyer is a thin permeable layer of, for instance, Teflon.

[00:03:46] Speaker 04:
OK, so we don't have a slab of Teflon where a water droplets going to have a 90 degree contact angle.

[00:03:51] Speaker 04:
We have a porous mesh-like thing that's put over the top of a microphone, and then a thin permeable layer of Teflon put on top of that.

[00:04:00] Speaker 04:
There was no analysis done whatsoever of that surface to say that that surface achieved its 90 degrees.

[00:04:08] Speaker 04:
What the board did, effectively, was just say, OK, I see hydrophobic mentioned in the patent and suit.

[00:04:14] Speaker 04:
We see hydrophobic mentioned or a hydrophobic coating being put on this Meyer cover element.

[00:04:19] Speaker 04:
and did sort of a word matching game of saying, OK, I see hydrophobic both places, and then I'm just going to assume that that means that this meets 90 degrees.

[00:04:28] Speaker 04:
Again, where they found the 90 degrees was in this extrinsic Kenningsburg reference.

[00:04:33] Speaker 04:
And that goes out of its way to emphasize that, again, a slab of teflon might have a 90 degree contact angle with water.

[00:04:41] Speaker 04:
But it's a unique function where you look at porosity and smoothness roughness and different aspects of the substrate to which you're applying it to.

[00:04:51] Speaker 03:
Is there anything like that in the patent?

[00:04:53] Speaker 03:
The climestone requires such an inquiry.

[00:04:55] Speaker 03:
The specification doesn't suggest it.

[00:04:58] Speaker 04:
again the courts for the board's claim construction requires instruction is wrong but no one is challenging that here and in this court's presence just when we have a claim construction from the board

[00:05:11] Speaker 04:
We then, and no one is challenging here on this appeal, the question is, is there substantial evidence to meet that?

[00:05:18] Speaker 04:
And part of the problem is why we have this disconnect between the evidence and the claim construction is because the board only first adopted it in the final written decision.

[00:05:29] Speaker 00:
To go back to Meyer, Meyer makes clear that it's using the Teflon because of its hydrophobic character.

[00:05:41] Speaker 00:
Right.

[00:05:42] Speaker 04:
That's one of the reasons it's using it.

[00:05:44] Speaker 00:
Right.

[00:05:45] Speaker 00:
But, and it presumably has a hydrophobic effect in the context of Meyer.

[00:05:51] Speaker 00:
That's Meyer's premise.

[00:05:54] Speaker 00:
And why is it not correct to say therefore that that hydrophobic effect caused by Teflon demonstrates that Teflon has a

[00:06:07] Speaker 00:
hydrophobic effect in the context such as with respect to your patent.

[00:06:13] Speaker 04:
So I would agree with you that putting the hydrophobic coating or Teflon coating on the Meyer cover element will have some level of hydrophobic effect.

[00:06:21] Speaker 04:
We then have the question of, is it meeting the requirement of what the clam construction was?

[00:06:26] Speaker 04:
And then secondarily, let me point out that Meyer was solving a very different problem than what's talked about in the Caramoc patent.

[00:06:34] Speaker 04:
The Meyer cover element is being coated so that there's not water penetrating through the cover element itself.

[00:06:42] Speaker 04:
This is a mesh-like thing.

[00:06:43] Speaker 04:
You have to allow acoustic ingress, so it's porous.

[00:06:47] Speaker 04:
And you're putting this hydrophobic substance on there to prevent water from penetrating into the microphone.

[00:06:53] Speaker 04:
The Caramuff patent, in comparison,

[00:06:56] Speaker 04:
is solving a very different problem.

[00:06:58] Speaker 04:
It's talking about putting a hydrophobic coating on different structural elements of a housing.

[00:07:04] Speaker 04:
And we're going to get to it's a different thing you're coating in Karamak.

[00:07:09] Speaker 04:
But to prevent the water from rolling off and penetrating crevices between two structural components.

[00:07:16] Speaker 04:
Why are the crevices materially different from pores?

[00:07:22] Speaker 04:
First of all, because that's what the claim says.

[00:07:24] Speaker 00:
The claim says we're talking about crevices in the... Well, I understand that, but the crevices are basically gaps in the surface of the object, and that you don't want water going through the gaps.

[00:07:38] Speaker 00:
Teflon will impede the water from going through gaps.

[00:07:42] Speaker 00:
I think we all understand that.

[00:07:45] Speaker 00:
Why are the gaps in Maier different materially from the gaps

[00:07:50] Speaker 00:
of IE crevices in the pad.

[00:07:52] Speaker 04:
Because what we're doing here, and this was the whole point of the Keramik pad, you're not putting a hydrophobic coating over the gaps, over the crevices.

[00:08:03] Speaker 00:
No.

[00:08:04] Speaker 04:
You're simply individually coating the components and finding that we don't have to put this over the gaps.

[00:08:11] Speaker 04:
individually, if we get a sufficient hydrophobicity of those components, the water won't roll into the crevices.

[00:08:17] Speaker 04:
Whereas with Meyer's cover element, you're preventing it from going through that.

[00:08:23] Speaker 04:
And so the Meyer cover element is going to have gaps on the side.

[00:08:27] Speaker 04:
They're not trying to solve that problem.

[00:08:29] Speaker 04:
They're simply solving the problem of going through the pores to the speaker that's below, not worrying about water rolling off the side to the crevices between structural components.

[00:08:41] Speaker 04:
And that's what we're talking about here in this claim.

[00:08:42] Speaker 04:
It's talking about crevices, chinks, capillaries, et cetera, that occur due to an assembly of at least two structural components.

[00:08:53] Speaker 04:
And so we're putting hydrophobic coating on housing walls

[00:08:58] Speaker 04:
on both sides of a crevice between two different structural components.

[00:09:03] Speaker 04:
And doing that prevents water from rolling into the crevices and penetrating the device.

[00:09:09] Speaker 04:
Again, Meyer's solving a different problem where we have this mesh cover over a speaker and getting sufficient hydrophobicity to go through that.

[00:09:18] Speaker 00:
And you're saying, are you saying that in Meyer, the Teflon coating is a solid coat of Teflon over the mesh

[00:09:28] Speaker 04:
I think it's described as a permeable thin layer of Teflon over the mesh.

[00:09:35] Speaker 00:
Permeable by what, air?

[00:09:38] Speaker 04:
Again, I'm just reading what's the quote from Meyer.

[00:09:41] Speaker 04:
That's all that's there.

[00:09:42] Speaker 00:
Well, that doesn't necessarily suggest that it's.

[00:09:46] Speaker 00:
What's bothering me is that obviously in Meyer, the mesh, the pores, are there in order to permit the acoustic

[00:09:57] Speaker 00:
passage to the innards of the machine.

[00:10:03] Speaker 00:
That wouldn't be possible if you have a solid sheet of Teflon on top of the mesh.

[00:10:08] Speaker 00:
Absolutely.

[00:10:09] Speaker 00:
So that doesn't sound like a description of what Meyer is really trying to do.

[00:10:15] Speaker 04:
So again, Meyer is saying, you know, put enough hydrophobic coating on this mesh over the speaker to prevent water from going through.

[00:10:25] Speaker 04:
Again, I think it's solving a very different problem.

[00:10:28] Speaker 03:
But the petitioner's expert said that Meyer was solving this problem, right?

[00:10:35] Speaker 03:
So why isn't that substantial evidence to support what the board did?

[00:10:41] Speaker 04:
First of all, I don't think the petitioner's expert mentioned the 90 degree contact angle or attempted to present any evidence with respect to the board's claim construction at all.

[00:10:53] Speaker 02:
That's a different issue.

[00:10:54] Speaker 02:
On the crevices, the petitioner's expert spoke to that, right?

[00:10:57] Speaker 04:
Yeah.

[00:10:57] Speaker 04:
And so they absolutely spoke to the crevices and whether water would penetrate.

[00:11:03] Speaker 04:
And on that, there's certainly evidence

[00:11:06] Speaker 04:
I think it's conclusory expert testimony, which this court in TQ Delta v. Cisco suggests isn't sufficient to provide substantial evidence.

[00:11:15] Speaker 04:
But then there's also the evidence of our expert, and this was Appendix 1865 to 70, where he went through in detail, both saying this is not going to prevent the water from penetrating the crevices as opposed to the cover element.

[00:11:31] Speaker 04:
And then secondly, pointing out the commonsense point

[00:11:34] Speaker 04:
But the whole point here is to put it on the housing walls on both sides of a crevice to prevent the water from... They didn't credit that.

[00:11:42] Speaker 03:
They credited the petitioner's expert.

[00:11:44] Speaker 04:
Right.

[00:11:44] Speaker 04:
Credited the conclusory testimony of their expert.

[00:11:48] Speaker 02:
If we don't think it's conclusory, they were free to credit it, correct?

[00:11:52] Speaker 04:
Fair enough.

[00:11:53] Speaker 04:
Although there's also case law from this court that suggests when there's contrary evidence, it needs to at least be acknowledged.

[00:11:59] Speaker 04:
And they basically said it was unrebutted, basically ignoring what our expert said.

[00:12:03] Speaker 04:
I guess the final point I want to make is this claim is short, it doesn't have a lot, but the one place that the hydrophobic coding must be applied in the claim is to the housing wall of one of these devices.

[00:12:18] Speaker 04:
And the evidence in the record is clear that in Meyer, they're not putting a hydrophobic coating on the housing wall of that device.

[00:12:28] Speaker 04:
The housing wall is called up by Petitioner's own expert.

[00:12:32] Speaker 02:
They're putting it on the cover element, which is part of Meyer's housing wall, isn't it?

[00:12:36] Speaker 04:
I don't think it's part of Meyer's housing wall at all.

[00:12:39] Speaker 04:
And in fact, their own expert, Appendix 59591, talks about the cover element is a removable

[00:12:44] Speaker 04:
Separate component from the housing your friend says that you argued it was part of the housing wall at 355 to 356 are they wrong about that I think they're absolutely wrong about that and You know again this was and this was actually something adopted by the board in the final written decision appendix 18 Meyer describes the coded cover element and the hearing aid housing as two individual components of the hearing aid

[00:13:12] Speaker 04:
where the coated cover element is a removable and separate component.

[00:13:17] Speaker 04:
Housing wall is a structural component.

[00:13:20] Speaker 04:
This is a separate optional removable component.

[00:13:23] Speaker 04:
That's the only thing where the hydrophobic coating is put on the Meyer device.

[00:13:29] Speaker 04:
And the claim specifically requires it has to be put on the housing, which is two separate structural components of the housing.

[00:13:39] Speaker 04:
And so they do not meet that requirement of the claim language.

[00:13:43] Speaker 04:
And the board just missed on that.

[00:13:46] Speaker 04:
There's no suggestion that the coded cover elements becomes a permanent structural form of this housing wall.

[00:13:55] Speaker 04:
And so we think that's another error that requires vacation reversal of the decision.

[00:14:02] Speaker 03:
OK.

[00:14:02] Speaker 03:
You're into your rebuttal time.

[00:14:03] Speaker 03:
Do you want to say that?

[00:14:04] Speaker 03:
I will reserve the reign.

[00:14:05] Speaker 03:
Thank you.

[00:14:05] Speaker 03:
We'll give you two minutes.

[00:14:08] Speaker 03:
Mrs. Nowell?

[00:14:23] Speaker 01:
Good morning, Your Honor.

[00:14:25] Speaker 01:
Katherine Noll from Med-El.

[00:14:27] Speaker 01:
May it please the court.

[00:14:30] Speaker 01:
This is a straightforward case.

[00:14:32] Speaker 01:
The board rightly found that Meyer anticipates each and every element of claim one of the 847 patent after carefully reviewing the extensive evidence provided during the IPR proceeding.

[00:14:47] Speaker 00:
Before you get into the guts of your argument, let me see if I understand what's going on in Meyer.

[00:14:55] Speaker 00:
Your opposing counsel has suggested that Meyer has a coat, as I understand it, a coat of Teflon all the way across the mesh area, as opposed to what I had understood, maybe incorrectly, to be a coating on the solid parts of the mesh but not covering the pores in the mesh.

[00:15:20] Speaker 00:
What do you understand from Meyer?

[00:15:24] Speaker 01:
Well, first of all, I'd like to clarify that Sunova's mischaracterizing the disclosure in Meyer.

[00:15:33] Speaker 01:
There's nowhere that it says it's a mesh-like coating.

[00:15:37] Speaker 01:
The cover element is described as a porous material that allows the acoustic signals to come in, but it also prevents water from also entering.

[00:15:48] Speaker 01:
And it also allows the cover element is disclosed.

[00:15:52] Speaker 00:
What do you call it?

[00:15:52] Speaker 00:
Mesh of pores.

[00:15:53] Speaker 00:
But in any event, it has pores.

[00:15:55] Speaker 00:
We know that.

[00:15:56] Speaker 01:
Correct.

[00:15:56] Speaker 01:
Pores are a little different than mesh.

[00:15:58] Speaker 00:
Okay.

[00:15:59] Speaker 00:
All right.

[00:15:59] Speaker 00:
Well, let's, let's, let's go with pores then.

[00:16:02] Speaker 00:
Does the Teflon cover up the pores or does it, is it simply positioned so it is around the pores so that the pores are free to reach the air?

[00:16:13] Speaker 00:
but the teflon is on the surfaces surrounding the pores so that water is prevented, or at least impeded, from going into the pores.

[00:16:22] Speaker 01:
Yes, that's our understanding as well, because Meyer does disclose that the acoustic signals are still able to come through even with the cover element coated, with the hydrophobic coating.

[00:16:34] Speaker 01:
and it prevents the water from penetrating into the hearing aid housing, the crevices in the electronics in the housing.

[00:16:45] Speaker 01:
So that is our understanding as well.

[00:16:46] Speaker 02:
Let's do one related question.

[00:16:48] Speaker 02:
I'd understood the preferred embodiment in Meijer was porous, but that your expert said there were also non-porous embodiments, or that one a skill in the art would read into a non-porous embodiment.

[00:17:00] Speaker 01:
Correct.

[00:17:00] Speaker 01:
And our expert said that in conjunction with the cover element that's disclosed to cover the vents.

[00:17:06] Speaker 01:
So Meijer discloses cover elements that cover the acoustic input apertures, the acoustic output apertures, and also vents.

[00:17:14] Speaker 01:
And part of that is because these hearing aid devices

[00:17:17] Speaker 01:
typically of batteries, usually zinc-air batteries that need air to be able to come in in order to function properly.

[00:17:25] Speaker 01:
So the cover element needs to cover that vent, but still allow the air to come into the housing.

[00:17:41] Speaker 01:
The substantial evidence supports the board's factual findings that Meyer discloses a hydrophobic coating, as that term has been construed, discloses a hydrophobic coating on the housing wall, and discloses providing a hydrophobic coating to prevent moisture from entering crevices formed between the assembly of at least two structural components.

[00:18:05] Speaker 02:
Given the claim construction, which the board adopted,

[00:18:10] Speaker 02:
we do have to read the claims as being limited to the term as defined in the claim construction, right?

[00:18:19] Speaker 02:
So the 90 degree or greater contact angle is something we do have to find in Meijer in order to invalidate the claims, right?

[00:18:28] Speaker 01:
Well, I would suggest that the claim, the 847 patent claim requires providing a hydrophobic coding.

[00:18:37] Speaker 01:
And the term hydrophobic has been construed to mean, by definition, resistance to water that exceeds the 90-degree contact angle.

[00:18:47] Speaker 01:
But that's not an additional limitation required in the claim.

[00:18:51] Speaker 02:
But for all practical purposes, we have to find a 90-degree or greater contact angle, because that's how the claims have been construed.

[00:19:01] Speaker 02:
And we have no appeal of that construction.

[00:19:07] Speaker 01:
What needs to be found is the word hydrophobic, the construction that hydrophobic means to one of ordinary skill in the art, having resistance to water with greater than 90 degree contact angles, what it's defined to mean.

[00:19:21] Speaker 01:
But claim one in Kerouac doesn't say providing a hydrophobic coating with a contact angle of greater than 90 degrees.

[00:19:28] Speaker 01:
It requires providing a hydrophobic.

[00:19:29] Speaker 02:
We know that's what the claims mean.

[00:19:31] Speaker 01:
I think that's the definition of the word hydrophobic.

[00:19:35] Speaker 01:
So I believe what needs to be shown in the prior art is that we have a hydrophobic coding as that term has been defined and construed to mean.

[00:19:45] Speaker 02:
Which is a greater than a 90 degree contact angle.

[00:19:48] Speaker 01:
I agree.

[00:19:50] Speaker 00:
Meier shows... Go ahead.

[00:19:52] Speaker 00:
I'm sorry.

[00:19:53] Speaker 00:
Do you think that in talking about the contact angle, the board of...

[00:20:03] Speaker 00:
referring to the contact angle that's present in the particular application, or more generally, that Teflon is a hydrophobic substance in general, because in general, it creates or experiences a contact angle of greater than 90 degrees.

[00:20:25] Speaker 00:
It seems odd to say that Teflon, in one circumstance, could be deemed hydrophobic.

[00:20:32] Speaker 00:
a hydrophobic substance, and in another context, not hydrophobic.

[00:20:37] Speaker 00:
It's a hydrophobic substance, right?

[00:20:40] Speaker 00:
And it's a hydrophobic substance because, at least in general, it has this high resistance to water.

[00:20:47] Speaker 01:
Correct.

[00:20:47] Speaker 00:
I think the board... What is it that the board really means when it says that it has to meet this angle requirement?

[00:20:54] Speaker 01:
Well, I think the board carefully construed or analyzed the evidence of the record and found that the

[00:21:00] Speaker 01:
Teflon is a known material that is hydrophobic and is known to have a contact angle greater than 90 degrees.

[00:21:10] Speaker 03:
It's not sufficient you don't have to actually measure the angle.

[00:21:15] Speaker 01:
I'm sorry.

[00:21:15] Speaker 03:
It's not sufficient that it's known as a hydrophobic material and you don't have to in individual cases go and measure the particular Teflon coating to determine whether it meets the 90 degree angle.

[00:21:30] Speaker 01:
I think that's correct.

[00:21:32] Speaker 01:
One of ordinary skill in the art understands that Teflon is a known hydrophobic coating, and it's known to have a contact angle of greater than 90 degrees.

[00:21:41] Speaker 00:
But you still have to deal with the 90 degree requirement.

[00:21:45] Speaker 00:
And to follow up on Judge Dyck's question, are you suggesting that in an individual case, if you had a showing that the

[00:21:58] Speaker 00:
the contact angle was less than 90 degrees, you would have no infringement.

[00:22:02] Speaker 00:
Because you would say, even though it's Teflon, it's not hydrophobic.

[00:22:07] Speaker 00:
Do you think that's the implication of what the board is saying when it says the construction, proper construction, is more than 90 degrees?

[00:22:14] Speaker 01:
I think the board is trying to determine what would one, of ordinary skill, understand the word hydrophobic to mean.

[00:22:22] Speaker 01:
And I think the board

[00:22:24] Speaker 01:
determine that Teflon is a known hydrophobic coating, and it's known to have a contact angle of greater than 90 degrees.

[00:22:32] Speaker 01:
So one of ordinary skill in the art would understand when Meyer discloses Teflon as an exemplary hydrophobic coating, they would know that that is a known coating that has a contact angle of greater than 90 degrees.

[00:22:49] Speaker 02:
Just about the crevices.

[00:22:53] Speaker 02:
argument.

[00:22:54] Speaker 02:
As I understand it, the board found it necessary to consider your expert's testimony in order to conclude that one of skill in the art would read into Meyer a disclosure of the crevices limitation.

[00:23:10] Speaker 02:
But in doing that, the board said that your expert's testimony was unrebutted, but that appears to be a mistake.

[00:23:18] Speaker 02:
Can you help me with that?

[00:23:24] Speaker 01:
I think the board carefully construed the evidence in front of it and determined that Meadow's construction was more plausible.

[00:23:38] Speaker 01:
I'm not talking about clay construction.

[00:23:39] Speaker 01:
I'm sorry.

[00:23:39] Speaker 01:
Meadow's interpretation that what Meyer discloses to one of ordinary skill in the art is that water is prevented from entering

[00:23:50] Speaker 01:
both the pores in the cover element as well as the crevices formed between the junction of the cover element and the rest of the housing.

[00:23:58] Speaker 02:
But in doing that, the board is clearly relying on your expert and your expert's testimony about what Meyer is doing, correct?

[00:24:11] Speaker 01:
Correct.

[00:24:12] Speaker 01:
The board did credit Dr. Jackman's testimony.

[00:24:15] Speaker 02:
And says that that testimony is unrebutted.

[00:24:18] Speaker 02:
I think that's it.

[00:24:19] Speaker 01:
It's 31.

[00:24:19] Speaker 01:
Correct.

[00:24:19] Speaker 01:
That is 31.

[00:24:21] Speaker 01:
Correct.

[00:24:21] Speaker 02:
But we're told on appeal, and it looks like they're right, that they did dispute that and maybe even presented contrary expert testimony.

[00:24:32] Speaker 02:
Are they wrong about that?

[00:24:34] Speaker 02:
Was it correct that it was unrevoted, or is that a mistake?

[00:24:37] Speaker 01:
I think even when there's two opposing views, the board can carefully analyze what is true.

[00:24:46] Speaker 00:
Go ahead.

[00:24:48] Speaker 00:
I'm just really asking the same question that Judge Stark did, which is, is it the case that there was some rebuttal evidence?

[00:25:02] Speaker 01:
I think Sonoba's position was that what Meyer discloses was only preventing water from entering into the pores.

[00:25:13] Speaker 01:
And Madal and our expert

[00:25:17] Speaker 01:
offered that it was the disclosure in Meyer 1 of ordinary skill in the art would understand that water is prevented from entering both the pores in the cover element as well as the crevices formed between the cover element and the rest of the housing.

[00:25:33] Speaker 01:
And the board considered all of that evidence and found that

[00:25:40] Speaker 01:
Sanova's position was just not a reasonable position.

[00:25:43] Speaker 02:
Sanova cites us to pages 1865 to 1870, which appears to be one of their expert reports.

[00:25:54] Speaker 02:
And they say that that's directly responsive and rebutting the testimony from your expert that the board relied on and called unrebutted.

[00:26:06] Speaker 02:
So again, I think Judge Bryson, I'm both searching for maybe two answers.

[00:26:09] Speaker 02:
Do you agree that it was rebutted?

[00:26:11] Speaker 02:
And if so, how do we know that the board considered both sides when they mistakenly told us it was unrebutted?

[00:26:19] Speaker 01:
I think that Sunova did

[00:26:37] Speaker 01:
offer into evidence that it was only the pores in the cover element that Meyer is disclosing when it talks about preventing water.

[00:26:46] Speaker 01:
But I think a reasonable interpretation when Meyer discloses that water is prevented from entering the hearing aid housing that Meyer is disclosing to one of ordinary skill in the art that we're talking about both the pores in the cover element as well as the crevices formed between the cover element and the housing.

[00:27:10] Speaker 01:
And I believe the board considered the evidence, all the evidence of record, and found that it was a more plausible explanation, the evidence that Med-Al had put forth.

[00:27:25] Speaker 01:
And it just wasn't a reason.

[00:27:26] Speaker 03:
Didn't they describe the patent owner's expert testimony?

[00:27:29] Speaker 01:
I'm sorry, what?

[00:27:30] Speaker 03:
Didn't the board describe the patent owner's expert testimony?

[00:27:40] Speaker 03:
The question is whether it overlooked the testimony.

[00:27:42] Speaker 01:
It described the testimony.

[00:27:43] Speaker 01:
I don't believe the board overlooked the testimony.

[00:27:45] Speaker 03:
It described the testimony.

[00:27:46] Speaker 01:
I think the board went through a very careful analysis.

[00:27:50] Speaker 03:
No, no.

[00:27:50] Speaker 03:
My question is, the board described their expert's testimony when summarized the party's positions.

[00:28:00] Speaker 03:
No?

[00:28:02] Speaker 01:
The board did summarize.

[00:28:04] Speaker 01:
both parties' positions as well as- So it didn't overlook the testimony?

[00:28:08] Speaker 01:
They did not overlook the testimony, correct, Your Honor.

[00:28:11] Speaker 03:
So even if it made a mistake and characterizes unrebutted, it's basically horrible.

[00:28:15] Speaker 03:
Sarah, it wasn't unaware of the testimony.

[00:28:18] Speaker 01:
Correct.

[00:28:18] Speaker 03:
It didn't fail to consider it.

[00:28:20] Speaker 01:
Right.

[00:28:20] Speaker 01:
The board did not ignore the testimony that Sinova and its expert had put forth.

[00:28:27] Speaker 01:
It just found that it was more reasonable to interpret

[00:28:32] Speaker 01:
what one of ordinary skill in the outward understand Meyer to disclose, that in looking at all the evidence that Meyer does disclose, that the hydrophobic coating prevents water moisture from entering into the crevices between the assembly of two.

[00:28:57] Speaker 02:
I don't think you got a chance to address the housing wall versus cover element issue.

[00:29:03] Speaker 02:
Do you agree that Sunova did put that limitation in dispute below?

[00:29:07] Speaker 01:
I believe that there are several points I want to make on that.

[00:29:15] Speaker 01:
Our expert actually did specifically testify that, and this is in Appendix 596, paragraph 60, that, quote, Meyer teaches combining the hydrophobic coding of a cover element

[00:29:31] Speaker 01:
that forms part of the housing wall of the hearing aid.

[00:29:35] Speaker 01:
So there was testimony on the record that we considered the cover element to be a part of the housing wall.

[00:29:44] Speaker 02:
What about A18 that your friend pointed out to us where it appears you argued that they were separate?

[00:29:53] Speaker 01:
Right, that was in conjunction with the other part of the claim element requirement because the claim in

[00:30:01] Speaker 01:
CAREMUC requires that the crevices occur due to an assembly of at least two structural components of the hearing aid device.

[00:30:12] Speaker 01:
So we were talking about that in conjunction with talking about two separate components.

[00:30:18] Speaker 02:
So the cover is separate from the housing wall, or it's part of the housing wall?

[00:30:23] Speaker 01:
It is separate until it's attached to the housing.

[00:30:26] Speaker 01:
And at that point,

[00:30:30] Speaker 01:
point, and Meyer even discloses that, that it becomes integrated into the housing.

[00:30:36] Speaker 01:
So Meyer discloses that the cover element does in fact become.

[00:30:40] Speaker 01:
And I would like to dispute, Sunova did argue earlier in their briefs in the patent owner's response at appendix 355 to 356, and it was in their footnote, in conjunction with talking about the cover element being a part of the housing wall, they said, quote, even if the interior sides

[00:31:00] Speaker 01:
are coated, the coating is still applied only to a portion of one surface that forms the crevice while the other portions are not coated.

[00:31:09] Speaker 01:
The 847 claim requires the crevice is formed in a wall of the housing.

[00:31:17] Speaker 01:
So they were absolutely arguing at that point that the cover element was part of the housing.

[00:31:23] Speaker 01:
What was being disputed at the time was that there were not coatings on both sides of crevice.

[00:31:30] Speaker 01:
And as we had articulated to the board, that is not, in fact, a requirement of the claim.

[00:31:38] Speaker 01:
The claim simply just requires that the coding is at least in the area of the one or more crevices.

[00:31:47] Speaker 03:
Unless you have any further questions.

[00:31:48] Speaker 03:
Thank you.

[00:31:49] Speaker 01:
We ask the board to affirm.

[00:31:51] Speaker 01:
Thank you.

[00:31:59] Speaker 04:
Very quickly on that last point at appendix 355-356, our argument was always it's not on the housing wall.

[00:32:06] Speaker 04:
And then secondarily, what counsel was pointing to is pointing out the additional point, which is it's only on one side of the crevice.

[00:32:14] Speaker 04:
So it's not really accomplishing the function that's called out in the claim, which is preventing moisture penetration into the crevice.

[00:32:21] Speaker 04:
With respect to Judge Stark's question regarding the porosity of a cover element,

[00:32:26] Speaker 04:
I agree that their expert did start to talk about, well, maybe you could have non-porous cover elements, but Meyer's very clear, this is Appendix 59, Column 3, 1819, says materials used for the cover element are porous.

[00:32:39] Speaker 04:
It seems like a very clear teaching, and there's no suggestion that they're going to go beyond that.

[00:32:44] Speaker 04:
In terms of this question of finding the word hydrophobic and what does it mean, and again,

[00:32:49] Speaker 04:
counsel argument, I think, was consistent with what the board did, which was basically, if I see hydrophobic, I just assume 90 degrees.

[00:32:55] Speaker 04:
There's actually evidence in the record, Appendix 350, that talks about the word hydrophobic being used in the art to refer to things down to 80 degrees, down to 65 degrees.

[00:33:05] Speaker 04:
And so we can't just assume we see hydrophobic, we can immediately conclude 90 degrees.

[00:33:11] Speaker 03:
Secondly, when they read in... Jordan Patton says that Teflon is hydrophobic.

[00:33:17] Speaker 04:
A slab of Teflon will be hydrophobic.

[00:33:20] Speaker 04:
Above 90 degrees, absolutely.

[00:33:22] Speaker 04:
But then when we look at... Does it say a slab of Teflon?

[00:33:26] Speaker 04:
It says Teflon.

[00:33:27] Speaker 04:
Teflon.

[00:33:28] Speaker 04:
Not a coat.

[00:33:28] Speaker 04:
Teflon coating.

[00:33:29] Speaker 04:
Teflon.

[00:33:30] Speaker 04:
That's the substrate and the surface.

[00:33:33] Speaker 04:
When we have a surface treatment being applied to a substrate, that's a different question.

[00:33:39] Speaker 04:
The only place where we had the 90 degree being read in inherently

[00:33:43] Speaker 04:
was from Kenningsburg, and Kenningsburg cautions and says, this is a function both of the surface treatment as well as the substrate to which it's applied.

[00:33:53] Speaker 04:
And we pointed out Kenningsburg in our blue brief, spent pages discussing pointing this out, and their red brief didn't come back and respond to it at all.

[00:34:02] Speaker 04:
Not a single word about Kenningsburg pointing out this is a much more sophisticated thing than simply word matching, finding hydrophobic, and being done.

[00:34:09] Speaker 02:
Was the board's error in calling their expert's testimony unrebutted on the crevices point, was it harmless?

[00:34:16] Speaker 04:
Absolutely not.

[00:34:17] Speaker 02:
How was it harming you?

[00:34:19] Speaker 04:
Because there was testimony there that pointed out that there would be water penetration, that Meijer doesn't meet that requirement.

[00:34:28] Speaker 04:
uh... dr young pointed that that i was clearly aware of your experts uh... analysis and referenced throughout the opinions certainly didn't consider that because it wouldn't characterized at the testimony of their expert is unrebutted if it had analyzed the eighteen sixty five seventy two meanings one is it was there was no answer given and the other is that it wasn't rebutted because the answer given what

[00:34:56] Speaker 00:
whatever it was worth, was not sufficient to persuade us otherwise.

[00:35:00] Speaker 00:
I wonder which of those two meanings of under budget is applicable.

[00:35:05] Speaker 04:
I think it's a mistake and missed, and didn't acknowledge it being there.

[00:35:10] Speaker 04:
And it's very easy to say, I've looked at both experts, and I agree with Petitioner's expert over the countervailing opinion.

[00:35:17] Speaker 04:
That's not what was said.

[00:35:19] Speaker 03:
OK.

[00:35:21] Speaker 03:
Thank you, Mr. Cernal.

[00:35:24] Speaker 04:
I give us now a case to submit.