[00:00:00] Speaker 01: The next case is Weber 8 vs. Robeson Technologies 8. [00:00:19] Speaker 01: Yes. [00:00:20] Speaker 01: Yes. [00:00:20] Speaker 01: Okay. [00:00:24] Speaker 01: That's good. [00:00:26] Speaker 01: Okay. [00:00:27] Speaker 01: Good morning. [00:00:33] Speaker 04: Your honors may please the court. [00:00:35] Speaker 04: The board committed several reversible errors here, and I'll start with the threshold of printed publication issue. [00:00:41] Speaker 04: The documents here are user manuals, familiar to anyone who has purchased a commercial product. [00:00:46] Speaker 04: And it's undisputed that the manuals describe the product that Weber had been advertising. [00:00:51] Speaker 04: been selling on the open market for years. [00:00:54] Speaker 04: And as a general business practice, Weber provides the manuals to customers who purchase the product here. [00:00:59] Speaker 04: It's undisputed that Weber provided the manuals to at least 10 companies, and their hundreds of employees, and used the manuals as teaching guides to train the employees. [00:01:11] Speaker 01: So to you, what's the difference, when we use the words in this context of this case, whether it's something that's publicly accessible, [00:01:20] Speaker 01: and whether something was publicly assessed. [00:01:23] Speaker 04: Well, Your Honor, this court's cases, including in GoPro, make clear that the hallmark of the touchstone of the print and publication analysis is accessibility, meaning that interested members of the relevant public must be able to locate the documented issue, exercising reasonable diligence. [00:01:41] Speaker 01: They don't need to actually... You don't have to show that the manuals were actually assessed. [00:01:47] Speaker 01: That's correct, Your Honor. [00:01:50] Speaker 04: Going back to Enrey Hall, this court held that a graduate thesis sitting on the library shelf was publicly accessible, notwithstanding evidence that no one ever looked at it. [00:01:58] Speaker 04: But here we do have evidence that the manuals were indeed accessed. [00:02:03] Speaker 04: We distributed the manuals to at least 10 customers and their many employees. [00:02:07] Speaker 04: And we have evidence that a Webber employee showed the manuals to an attendee at a trade show, making this case very similar to GoPro. [00:02:16] Speaker 04: So here's a number 10, correct? [00:02:20] Speaker 04: That's what the board found, correct? [00:02:21] Speaker 04: We dispute that finding, but accepting that finding, that should have been more than sufficient. [00:02:26] Speaker 01: And did the board find that those 10 were related to [00:02:30] Speaker 01: customers of the device at the trade show, or 10 prospective customers? [00:02:39] Speaker 04: Your Honor, those 10 companies were companies that actually purchased the underlying machine. [00:02:44] Speaker 04: But the same was true in enhanced security, where this part held a user manual. [00:02:48] Speaker 01: Did you have to buy a machine in order to receive the manual? [00:02:53] Speaker 04: No, Your Honor, that was one vehicle by which one could obtain the manuals. [00:02:57] Speaker 04: There were others. [00:02:58] Speaker 04: For example, we made them available upon request. [00:03:00] Speaker 04: And we have documentary evidence that has emailed communications between prospective buyers and Webber in which the prospective buyers actually requested the manuals and received the manuals. [00:03:12] Speaker 04: In addition, we also made the manuals accessible on trade shows and in open houses. [00:03:17] Speaker 04: And Mr. Horst testified in his declaration that he actually showed an attendee of the trade show the manual. [00:03:24] Speaker 04: And in fact that that attendee asked to see the manual which further shows that interested members of the relevant public knew that these manuals existed and they knew how to access them. [00:03:35] Speaker 03: The board rejected a lot of that evidence because it came from the mouths of your own employees. [00:03:40] Speaker 03: Isn't that essentially a credibility determination that we have to defer to? [00:03:43] Speaker 03: No, Your Honor. [00:03:46] Speaker 04: It is true that the board found that our witness testimony was not credible based on bias. [00:03:52] Speaker 04: associated with their employment. [00:03:53] Speaker 04: But we have to remember that these are Weber publications, and so the only witnesses who are competent to testify about their authorship and distribution are Weber employees. [00:04:03] Speaker 04: The same was true in GoPro. [00:04:05] Speaker 04: The single declarant that this court found was sufficient there [00:04:08] Speaker 04: resolved by an employee of the IPR petition. [00:04:11] Speaker 03: I might agree entirely with all that, but isn't that the board's call whether to find that evidence credible or not? [00:04:18] Speaker 04: Well, to make a categorical finding on that basis, Your Honor, I think is improper, especially when... Can you point to any authority that would make that improper? [00:04:27] Speaker 04: No, Your Honor, other than APA law aqua products that says that the board has to consider all evidence, here the board placed almost as positive weight on provisor's employee declaration when that declaration was offered by an employee and provisor and at the same time discounted our evidence. [00:04:46] Speaker 05: So they relied on their witness statements. [00:05:02] Speaker 05: which would have the same kind of bias that yours did. [00:05:04] Speaker 04: That's exactly right. [00:05:05] Speaker 04: That's exactly right. [00:05:06] Speaker 04: And that's arbitrary and capricious, and it's certainly not substantial evidence. [00:05:10] Speaker 04: And if we turn to the board's analysis of the trade show evidence, we see that it's riddled with legal error beginning at appendix 31 and going on. [00:05:20] Speaker 05: I'd just like to get into it. [00:05:22] Speaker 05: I mean, it seems to me the board has just completely misunderstood our court's decision. [00:05:26] Speaker 05: which was based upon a very specific set of tasks where somebody gave a science paper that was heard by four of his colleagues, and everybody understood he shouldn't have shared it. [00:05:37] Speaker 00: That seems in no way publicly accessible, but the board seems to have taken from that the notion that confidentiality per se [00:05:47] Speaker 00: destroys any possibility of public accessibility. [00:05:51] Speaker 00: Do you agree with that? [00:05:52] Speaker 04: I agree completely, Your Honor. [00:05:53] Speaker 04: The board read what is... You don't agree with that. [00:05:57] Speaker 04: I agree with your interpretation that the board misinterpreted court is. [00:06:01] Speaker 04: That's what I'm trying to say. [00:06:03] Speaker 00: So I guess what bothers me about the board's decision here is that it said [00:06:11] Speaker 00: You know, anybody that wants this manual will get it, right? [00:06:15] Speaker 00: All they have to do is buy the product. [00:06:17] Speaker 00: And they place a lot of emphasis on the fact that these are very expensive products. [00:06:21] Speaker 00: But so what? [00:06:22] Speaker 00: That's the relevant market for these products. [00:06:24] Speaker 00: Isn't that who the public is? [00:06:26] Speaker 00: The court has also seemed to misunderstand, the court misunderstands public documents over and over again. [00:06:33] Speaker 00: We keep having to reverse the public's. [00:06:34] Speaker 00: And public accessibility is not, I know I'm preaching to you, they can answer this when they go. [00:06:40] Speaker 00: It's not the general public, it's the public that's interested in this kind of area. [00:06:45] Speaker 00: Aren't the consumers the buyers of these meat slicers? [00:06:49] Speaker 00: Wait, are these meat slicers? [00:06:51] Speaker 00: Yes, yes they are. [00:06:52] Speaker 00: I was worried I was getting it mixed up. [00:06:53] Speaker 04: No, no, that's correct. [00:06:55] Speaker 04: You're exactly correct. [00:06:57] Speaker 04: We can talk about this all day, because this is really interesting. [00:07:01] Speaker 00: But I would like to move on to the claim construction issues. [00:07:07] Speaker 00: And my specific question is, if we disagree with the board's claim construction over disposed over, and find that it is only Reddit to cover an embodiment, which is completely against our case law, is there any dispute that we have to send back if disposed over just means what you say it means? [00:07:27] Speaker 05: Or can we reverse? [00:07:28] Speaker 04: I think this court can reverse. [00:07:31] Speaker 04: Now, the provisor did make a passing statement in its red brief suggesting that a lack of complete overlap might not matter. [00:07:38] Speaker 04: I don't understand that argument, Your Honor. [00:07:40] Speaker 04: There is never a dispute below. [00:07:41] Speaker 04: And I don't believe there is a dispute on the appeal that if we get our instruction, that the court should and can reverse our right. [00:07:49] Speaker 03: Can you help me with what exactly is in dispute about what has to be offset? [00:07:54] Speaker 03: Because it seems you both agree. [00:07:56] Speaker 03: something cannot be offset and you both agree, you know, other things perhaps can be, but what exactly do you understand the dispute? [00:08:04] Speaker 04: Yes, Your Honor, to be crystal clear, in our prior combination, all major components of the feed apparatus are indeed directly above and laterally aligned with the litre, with the exception of one component, and that is the mechanism that drives the grippers. [00:08:19] Speaker 04: So the sole dispute here before this Court is whether that mechanism has to be laterally aligned [00:08:25] Speaker 04: with the loading apparatus in the lift tray. [00:08:27] Speaker 04: Is that called the conveyors? [00:08:29] Speaker 04: The conveyor belt that drives the rigors. [00:08:31] Speaker 04: That's correct. [00:08:32] Speaker 04: And the claims don't require that. [00:08:35] Speaker 04: The claims use non-technical language that's quite simple. [00:08:37] Speaker 04: It says that the feed apparatus must be disposed over that is above the loading apparatus. [00:08:43] Speaker 04: Now, to your honor's question, everyone agrees that the rigors in the feed bath have to be laterally aligned because that's required by other claim limitations and to describe them in specification. [00:08:54] Speaker 04: But there's certainly nothing in the claims or the specification that require the conveyor belt that drives the record. [00:09:02] Speaker 03: Do you articulate or have you articulated in the record a specific construction that would accomplish what you've just said? [00:09:09] Speaker 03: Well, Your Honor, we said that disposed over would just mean above. [00:09:13] Speaker 03: But it clearly is narrower than that, even on your own telling. [00:09:16] Speaker 04: Well, Your Honor, to be clear, the requirements that the grippers be laterally aligned with the lift tray is actually imposed by different claim limitations, not the phrase disposed over. [00:09:27] Speaker 04: So even accepting that the grippers have to be literally lined, that isn't a requirement that is imposed by the language disposer. [00:09:36] Speaker 04: But if this court were inclined to hold that disposer over means above and that the grippers and the fee path are literally lined, that would be fine. [00:09:44] Speaker 04: That doesn't change the fact that our prior law disclosed that. [00:09:49] Speaker 01: Why would you argue that? [00:09:51] Speaker 01: about just the fact that the public sent the stretch. [00:10:03] Speaker 01: And I mean, it's clear from the figures that there's plenty of old, long parts of the machine that are not, none of them. [00:10:07] Speaker 01: So you have to narrow your, you would have to narrow that stretch more, wouldn't you? [00:10:12] Speaker 04: Well, no, Your Honor, I don't think so. [00:10:14] Speaker 04: I mean, if we look at figure two, the patents, for example, and appendix, oh, I wish they didn't have [00:10:23] Speaker 04: at my fingertips. [00:10:26] Speaker 04: Figure 2 shows the servo motors, which are element 850, which are indisputably part of the feed apparatus. [00:10:33] Speaker 04: And those components are outside of the foot points of the lift tray. [00:10:37] Speaker 04: That is, they are not literally lined. [00:10:39] Speaker 04: And those components, like the conveyor belts, are also expressly recited in the claims. [00:10:44] Speaker 04: And yet no one would say that the feed apparatus is not disposed of. [00:10:48] Speaker 04: So the board drew this arbitrary distinction between components like the servo motor [00:10:52] Speaker 04: and other components that they can do. [00:10:56] Speaker 03: How about on the last limitation, Stopgate? [00:11:00] Speaker 03: Yes, yes. [00:11:02] Speaker 03: Is it your contention that the board misunderstood your Sandberg-based theory, or that they understood it and just wrongly evaluated it? [00:11:11] Speaker 04: Your Honor, to be clear, the Sandberg theory only applies to the 812 patent. [00:11:16] Speaker 04: I just wanted to make that clear, not all patents. [00:11:18] Speaker 04: But in any event, we believe that the Board misunderstood our theory. [00:11:22] Speaker 04: We relied on Sandberg's operational method, that is, loading a food article in the slicer, while the previously loaded [00:11:31] Speaker 04: food article is finished being sliced. [00:11:34] Speaker 04: That improves efficiency and it doesn't matter what type of machine you use that method on. [00:11:39] Speaker 04: If you were to use that method on the 904 slicer, you would have to lower the lift tray so as to load the new slice. [00:11:47] Speaker 04: And the board seemed to believe that we were relying on Sandberg's structure, that was Sandberg's actual stop gate, rather than the operational method. [00:11:57] Speaker 04: And that simply was never our argument, Your Honor, so that rises to an APA violation. [00:12:01] Speaker 04: And the board failed to consider both references and combination. [00:12:05] Speaker 04: It viewed Sandberg in isolation. [00:12:09] Speaker 05: I think you're relying on our own manuals for the stop gate. [00:12:13] Speaker 04: That's correct. [00:12:14] Speaker 04: Our primary reference was our own manuals, but for the 812 patent, we also relied on Sandberg. [00:12:19] Speaker 04: But to your point, Your Honor – oh, I'm sorry. [00:12:23] Speaker 04: To your point, Your Honor, I don't even think we need Sandberg to show that this limitation is satisfied. [00:12:29] Speaker 04: To be clear, the limitation requires that the claim stop gate be in a food-supporting position [00:12:34] Speaker 04: as the lift tray is being lowered. [00:12:36] Speaker 04: We only have to show one example in the art that satisfies that limitation, and that's exactly what we did. [00:12:42] Speaker 04: We pointed to figures 10 and 227 of the manuals. [00:12:45] Speaker 04: That's at appendix 1331 and 1480. [00:12:48] Speaker 04: Both of which show the product bed conveyor, that is the claim stock gate, in a food supporting position with the grippers directly overhead. [00:12:56] Speaker 04: So if they were grasping food, that food would be supported. [00:13:00] Speaker 04: And they both show that the lift tray is in a lowered position. [00:13:03] Speaker 04: We also relied on the textual description of Figure 10 at Appendix 1331 that says, in no uncertain terms, that the product that conveyor supports the transport of product, that is, food product. [00:13:17] Speaker 05: Now, from those... What about the George argument that this doesn't show everything, because it doesn't show where the food would be? [00:13:25] Speaker 04: I don't understand that argument or that finding, Your Honor, because as I noted in the passage that I just quoted, the manual indisputably says that it supports the transport of food. [00:13:37] Speaker 04: And even if it didn't, these are apparatus claims that don't require the machine to actually be loaded. [00:13:43] Speaker 04: with food. [00:13:44] Speaker 04: I mean, we know that food is going to feed them, even if it has to be reversed and all that. [00:13:48] Speaker 03: That's exactly correct, Your Honor. [00:13:49] Speaker 03: Can we reverse on stopgate, or do we have to vacate the room at best for you? [00:13:54] Speaker 03: Your Honor, I think you can reverse. [00:13:56] Speaker 04: I think the figures clearly show the stopgate in a food-supporting position with a lift right down. [00:14:03] Speaker 04: And that, in combination with the passage that we rely on and which the board ignored, satisfies the limitation. [00:14:10] Speaker 04: What about the one in the far center? [00:14:12] Speaker 04: Well, it's the same limitation for both, Your Honor. [00:14:15] Speaker 04: So if this Court were to find that the manuals don't disclose the limitation on its own, then it would have to dedicate with regard to Sandberg and send it back down. [00:14:24] Speaker 04: If there are no other questions, I will save my time. [00:14:28] Speaker 04: Thank you. [00:14:51] Speaker 02: Good morning, Your Honors. [00:14:51] Speaker 02: May it please the Court. [00:14:53] Speaker 02: Ford went out of its way to do three separate standalone rationales of accountability in this case. [00:15:00] Speaker 02: And as you know, any one of those three rationales is sufficient to be dispositive and sufficient for you to firm the judgment. [00:15:07] Speaker 02: Any one of those three. [00:15:08] Speaker 02: They have to win on all three, and they can't do that. [00:15:11] Speaker 03: You start start on a printed publication and of course that you've outlined some of the distinctions that seem pretty obvious. [00:15:21] Speaker 03: What is your response? [00:15:23] Speaker 02: Well, Your Honor, I think we all know that under the current publication law, it's a totality of the circumstances case by case, highly factual inquiry. [00:15:32] Speaker 02: And when you look at the facts in this case, [00:15:34] Speaker 02: We have fact after fact and determination after determination, wang after wang. [00:15:38] Speaker 03: Can you point to a single fact here of somebody who wanted to see the manuals not being able to see them? [00:15:45] Speaker 02: That's the whole world. [00:15:47] Speaker 02: The only evidence you have of someone that could see the manuals is the 10 customers who paid hundreds of thousands of dollars. [00:15:56] Speaker 03: Is there any evidence that more than 10 customers wanted to pay hundreds of thousands of dollars to see it? [00:16:01] Speaker 02: Well, that's the point. [00:16:02] Speaker 02: It's not publicly accessible, and no one else would have wanted to see it. [00:16:05] Speaker 00: If you had that, let's say... When you say 10 customers, you mean individual entity companies, right? [00:16:10] Speaker 00: You don't mean only 10 actual people saw this. [00:16:14] Speaker 00: It's 10 entities, yes, Your Honor. [00:16:16] Speaker 05: Hundreds of people saw this manual. [00:16:19] Speaker 02: I don't think there's evidence of that here. [00:16:20] Speaker 05: Anybody that worked at a plant and needed to see this could see this. [00:16:23] Speaker 02: I don't think that's right, Your Honor. [00:16:24] Speaker 02: When you look at what the evidence and the findings of the board is, those manuals were kept under lock and key in cages. [00:16:29] Speaker 04: They call it a library. [00:16:36] Speaker 02: The record shows that people did not access those names. [00:16:41] Speaker 02: And we have finding after finding from the board. [00:16:43] Speaker 02: showing why that is. [00:16:44] Speaker 02: They're kept under lock and key. [00:16:46] Speaker 02: You have people that worked in the industry for 30 years that had never seen a manual. [00:16:50] Speaker 02: You have these self-interested declarations. [00:16:53] Speaker 02: What, Your Honor, you asked about is their demeanor-based credibility. [00:16:56] Speaker 02: There was a huge deal for the board here. [00:16:58] Speaker 02: We have these six declarations where their employees come out and say, you know what? [00:17:03] Speaker 02: We would have given it to anyone that asked. [00:17:05] Speaker 02: Well, in the last deposition in this case, they have an employee who gets up there, and I was shocked when I saw him under cross-examination. [00:17:11] Speaker 02: He says, [00:17:12] Speaker 02: Well, yeah, but we would have given it out, but we had to get permission from the CEO of sales. [00:17:17] Speaker 02: And that actually no one ever actually provided that permission. [00:17:21] Speaker 02: So that was a huge credibility determination. [00:17:23] Speaker 02: It was not credible for them to put in these six. [00:17:25] Speaker 01: Why isn't the 10 enough? [00:17:26] Speaker 01: Pardon me? [00:17:27] Speaker 01: Why isn't the 10 enough? [00:17:29] Speaker 02: Well, you know there's no guideline rules when we're talking about printed publications. [00:17:32] Speaker 02: So 10 could be enough in certain cases. [00:17:34] Speaker 02: But in the case here, [00:17:36] Speaker 02: As the board said in its final written decision, the major difference between this case and enhanced security is the confidentiality. [00:17:46] Speaker 02: The long, long record of confidentiality. [00:17:49] Speaker 02: It's not just the provision on the inside of the manual. [00:17:52] Speaker 02: It's not just the general terms and conditions. [00:17:55] Speaker 02: It's the declaration that we have of people talking about the industry. [00:17:59] Speaker 02: In other words, we have ten sets of general terms and conditions. [00:18:02] Speaker 02: where these companies restricted access. [00:18:04] Speaker 02: So it's the totality of the circumstances. [00:18:06] Speaker 02: Maybe 10 people got it, but no one else could get it because it was all confidential. [00:18:11] Speaker 02: It was required to be confidential. [00:18:18] Speaker 00: I mean, this is the public. [00:18:19] Speaker 00: The court has again confused the general public. [00:18:23] Speaker 00: I can't walk out the street and get it unless I'm going to buy it. [00:18:26] Speaker 00: But if anybody in this industry wants the manual, they can buy a machine. [00:18:31] Speaker 00: There's no limitation on who can sell the machine. [00:18:33] Speaker 02: And your law, Your Honor, is that you need to exercise reasonable diligence in order for something to be publicly accessible. [00:18:39] Speaker 02: So going off the street and buying a $800,000 meat slicer, that is not reasonable diligence. [00:18:45] Speaker 00: Why does the amount make it any prevalent? [00:18:48] Speaker 00: What if the slicer costs $50? [00:18:51] Speaker 00: That's different. [00:18:51] Speaker 02: Why? [00:18:52] Speaker 02: That's different. [00:18:53] Speaker 00: You could walk off the street and you know. [00:18:55] Speaker 00: You can't talk about meat. [00:18:59] Speaker 00: The $50 meat slicer may be a public thing that, you know, retail homeowners are going to use. [00:19:04] Speaker 00: So you think that would be okay. [00:19:05] Speaker 00: This is a commercial slicer. [00:19:07] Speaker 00: So the relevant audience is people who are interested in commercial slicers. [00:19:11] Speaker 00: These are people that can afford to buy a $580,000 machine. [00:19:16] Speaker 00: Why isn't the fact that it is publicly accessible to them, good enough? [00:19:21] Speaker 02: I think it's not good enough under the law, Your Honor. [00:19:23] Speaker 02: We have a totality of circumstances test where you need to consider all of the evidence. [00:19:27] Speaker 02: Accessibility, limited accessibility to only 10 people, that could be part of it. [00:19:31] Speaker 02: Confidentiality is a big part of it, too. [00:19:33] Speaker 02: And that's what the board relied on. [00:19:34] Speaker 00: What does that mean, confidentiality? [00:19:35] Speaker 00: Does it come from our court of states? [00:19:38] Speaker 02: That's one of the examples, yes. [00:19:39] Speaker 00: Where else? [00:19:41] Speaker 04: I don't remember. [00:19:42] Speaker 04: Because the board is completely over read at court of states. [00:19:45] Speaker 04: Well, I mean, the facts here... The facts in the Court's case, you have to admit, aren't anything close to here. [00:19:52] Speaker 00: It's a scientific paper presented to three or four colleagues in the same field with the expectation, not disputed, that they wouldn't talk about it to anybody else. [00:20:03] Speaker 02: Well, I think the facts in this case are stronger than the Court's, Your Honor. [00:20:06] Speaker 02: When we talk about the general term and the conditions, the Court's case had a problem, because they actually said, [00:20:12] Speaker 01: that you can't share it under the term of conditions. [00:20:26] Speaker 02: And that's where we have hearing on it. [00:20:27] Speaker 02: We only have 10 people. [00:20:28] Speaker 01: But we need 10 distributions. [00:20:30] Speaker 01: What about somebody who wants to kick the tires, so to speak, on the machine? [00:20:34] Speaker 01: That's again a great example. [00:20:35] Speaker 01: And then they ask to see the manual. [00:20:38] Speaker 01: Let me see the manual so I can figure out how this gate works. [00:20:41] Speaker 02: They couldn't have gotten the manual. [00:20:42] Speaker 02: That's what the board's factual findings are. [00:20:44] Speaker 02: They could have? [00:20:45] Speaker 02: They could not. [00:20:46] Speaker 02: The board made factual findings about that. [00:20:48] Speaker 03: What was the evidence for that? [00:20:51] Speaker 02: There was declarations. [00:20:52] Speaker 02: saying they could freely would give the current publications out, and the board rejected that because they weren't credible. [00:20:58] Speaker 02: They weren't credible based on demeanor. [00:20:59] Speaker 02: They weren't consistent with the evidence. [00:21:01] Speaker 02: They were inconsistent with the board's evidence. [00:21:03] Speaker 00: The opposite evidence to the contrary. [00:21:06] Speaker 00: Pardon me, Your Honor. [00:21:06] Speaker 00: They didn't have any opposite evidence to the contrary. [00:21:10] Speaker 02: They sure did, Your Honor. [00:21:12] Speaker 02: The deposition testimony, the demeanor evidence, [00:21:15] Speaker 02: The board did not believe the declarations of the petitioner. [00:21:19] Speaker 03: The colloquially kick the tire example. [00:21:22] Speaker 03: There's nothing in this record that says if Judge Raina wants to go kick the tires of one of these machines and Klan said to Emanuel, he would not be permitted. [00:21:30] Speaker 02: There's nothing on that. [00:21:33] Speaker 02: Emanuel's reform, what, 2006? [00:21:35] Speaker 02: There is no evidence that that ever happened. [00:21:37] Speaker 02: There's no evidence that anyone was ever able to ask for Emanuel again. [00:21:41] Speaker 02: And they never had. [00:21:42] Speaker 02: So if you wouldn't mind, Ron, I'd be happy to move on to one other. [00:21:46] Speaker 03: Well, I just have one more question. [00:21:47] Speaker 03: In the reply, they put in even more evidence that seems to support that there were at least something like 40 sales worldwide of these expensive machines. [00:21:57] Speaker 03: Would it make a difference to you if we consider that evidence? [00:22:00] Speaker 02: Well, that evidence is a mess, Your Honor. [00:22:01] Speaker 02: And it's a mess. [00:22:03] Speaker 02: The evidence is a mess. [00:22:04] Speaker 02: If you go back and look at the record, there's invoices, shipping, delivery, notes. [00:22:09] Speaker 02: And the sales of the 40 are not supported by that evidence. [00:22:13] Speaker 02: And the board made that fine. [00:22:14] Speaker 02: And it's supported by what the substantial evidence on that. [00:22:18] Speaker 03: OK. [00:22:19] Speaker 03: My question, I guess, is it's not a bright line. [00:22:21] Speaker 03: You can see that. [00:22:23] Speaker 03: But if we were to, if we were on remand, the board were to credit that there were 40 sales worldwide, would that make a difference here? [00:22:30] Speaker 02: I think it could. [00:22:30] Speaker 02: I think we'd have to do that analysis on remand. [00:22:33] Speaker 02: I don't think it would make a difference. [00:22:34] Speaker 02: You have cases in your case law. [00:22:35] Speaker 01: Under a case law, does that mean? [00:22:38] Speaker 02: Well, under your case, Father, it's the Northern Telecom case, as an example, that has 50 distributions. [00:22:43] Speaker 02: So I'd be looking at that case for support there. [00:22:45] Speaker 02: It's a totality of circumstances. [00:22:47] Speaker 02: The board would have to weigh that again. [00:22:48] Speaker 01: Can you address the disposed-over limitation? [00:22:52] Speaker 02: Absolutely, Your Honor. [00:22:57] Speaker 02: So the missing limitation that we have with disposed-over is the feed apparatus conveyor belts. [00:23:01] Speaker 02: And you have the claims requiring the feed apparatus belts to be disposed over the loading apparatus. [00:23:08] Speaker 02: The prior combination is missing this element because the feed apparatus is offset to the side from the loading apparatus. [00:23:16] Speaker 02: So that's why we're arguing about this. [00:23:17] Speaker 02: That's why they're trying to get this to be broader, to be anything that is above. [00:23:22] Speaker 02: And that claim instruction is not supported. [00:23:25] Speaker 00: What do you mean the feed apparatus is off to the side? [00:23:27] Speaker 00: Not all of it's off to the side, right? [00:23:29] Speaker 00: Just part of it. [00:23:30] Speaker 02: The feed apparatus conveyor belts are off to the side in the combination. [00:23:35] Speaker 02: That's why there's a missing element. [00:23:37] Speaker 05: Where does the claim list of conveyor belts have to be disposed of? [00:23:41] Speaker 02: Well, if you look at the 436 patent claim one on B, the claim language is feed apparatus disposed over the food article load apparatus having an upper conveyor assembly. [00:23:53] Speaker 02: So the upper conveyor assembly with the conveyor belts [00:23:56] Speaker 02: is part of the feed apparatus. [00:23:58] Speaker 05: It does use the word belt. [00:24:00] Speaker 02: It does use the word belt. [00:24:01] Speaker 02: I cut the claim shorter and it says, the feed apparatus disposed over the food article loading apparatus having an upper conveyor assembly with a driven, endless conveyor belt using cooperation with the food article driver. [00:24:13] Speaker 02: So when we look to the claim, of course, as we always do, we look at what is the feed apparatus. [00:24:18] Speaker 02: And what the claim talks about the feed apparatus is that you have the conveyor belts [00:24:24] Speaker 02: And you have the grippers. [00:24:26] Speaker 02: That's what the feed apparatus and the claims. [00:24:28] Speaker 02: So by the claim language of the claims, you have the feed apparatus that's having the grippers and the belts, and that's displayed over the loading apparatus. [00:24:37] Speaker 02: That's what the claim requires. [00:24:39] Speaker 02: And that's actually what we see throughout. [00:24:41] Speaker 00: That's all the claim requires. [00:24:42] Speaker 00: Why did the board have to put in a bunch of extraneous words to come up with the claimants? [00:24:48] Speaker 02: I think the board was trying to resolve what the dispute was between the parties, and this dispute was about the prior art. [00:24:52] Speaker 00: But the board's not allowed to do that, right? [00:24:53] Speaker 00: I mean, in general, in claimant instruction, the board can't add in language to the claim that's not there to overly narrow it. [00:25:02] Speaker 00: I mean, that's a fundamental base drawback. [00:25:03] Speaker 02: Sure, the Phillips standard, right? [00:25:05] Speaker 02: So what I think the board did is they tried to clarify, because the parties had to dispute about what the prior art's doing, what is required by the prior art and what is required by the claim. [00:25:14] Speaker 02: The claim requires the feed apparatus to dispose over the loading apparatus, and the prior didn't happen. [00:25:20] Speaker 02: So they made those constructions and they made that extra explanation in order to resolve that dispute, because the prior was different than what is in the claim. [00:25:29] Speaker 02: And that's completely supported throughout the intrinsic evidence. [00:25:32] Speaker 02: When you look at the intrinsic evidence in the specification, you see the summary of the invention, appendix 202.2, [00:25:40] Speaker 02: The invention provides a list tray that is located in line with the food art feed pass. [00:25:44] Speaker 02: And you saw this throughout the board's explanation. [00:25:47] Speaker 02: They relied heavily on what was described in the specification to support the construction of the claim terms. [00:25:55] Speaker 02: It kind of begs the question, when we're thinking about what was the claim construction, maybe I could choose different words for what the claim construction is, but the claim construction is certainly not that dispose over is anything that is above. [00:26:07] Speaker 02: That's exceptionally broad. [00:26:09] Speaker 02: And what is key here is that the belts and the grippers are in line with the feed path and over that loading of brackets. [00:26:19] Speaker 02: That's what the spec talks about. [00:26:23] Speaker 00: Are the grippers in line with the prior arc? [00:26:24] Speaker 00: Yes, sir. [00:26:26] Speaker 02: And the grippers in line? [00:26:27] Speaker 04: Or are we just talking about the belts? [00:26:30] Speaker 02: The main distinction was the belts in the prior arc. [00:26:34] Speaker 04: The grippers are over height. [00:26:37] Speaker 02: There are different examples of differs in the prior. [00:26:40] Speaker 02: Some are open, some are not. [00:26:42] Speaker 05: Well, don't you lose if some are and some aren't? [00:26:45] Speaker 02: No, you're not. [00:26:45] Speaker 05: If it discloses some of them being open, then that discloses it. [00:26:49] Speaker 05: Well, so, you know, we have a piece of prior art. [00:26:56] Speaker 05: Let me ask you this. [00:26:58] Speaker 05: If we disagree with you that the belts have to be disclosed open, and so the belts can be off to the side, is there any dispute that everything else that's required is disclosed open? [00:27:03] Speaker 02: So if we assume that the belts and the grippers were disposable, then I think we would need that limitation. [00:27:11] Speaker 04: No, no, no. [00:27:11] Speaker 04: You rephrase it. [00:27:12] Speaker 04: The belts don't have to be disposable. [00:27:16] Speaker 04: Everything else has to be disposable. [00:27:23] Speaker 00: Does the prior art show everything else disposable? [00:27:26] Speaker 02: I don't believe so, Your Honor. [00:27:27] Speaker 02: And what does it show disposable? [00:27:28] Speaker 05: Well, there's lots of other limitations in the plan. [00:27:30] Speaker 05: No, but we're not talking about the other limitations. [00:27:31] Speaker 05: We're talking about [00:27:33] Speaker 05: the food apparatus assembly. [00:27:36] Speaker 02: I don't think that evidence is in the record, Your Honor. [00:27:38] Speaker 04: The board would have to weigh that separately. [00:27:47] Speaker 04: What do you mean evidence is in the record? [00:27:48] Speaker 04: The record is the record. [00:27:48] Speaker 04: Taking apart the belt, did you ever dispute that there's anything except the belts that aren't over? [00:27:52] Speaker 02: The focus was the belts below. [00:27:55] Speaker 02: And let me make a point on this too, Your Honor, when you're talking about reversal of the man. [00:27:59] Speaker 02: Below, there is a number of other arguments of reason that combine arguments, and besides these missing limitation arguments, the board says that in the final written decision. [00:28:06] Speaker 02: So there's no basis to reverse here. [00:28:09] Speaker 02: If there's any issues, you'd have to amend it to further consider. [00:28:12] Speaker 05: At least... Where in your letter did you say that? [00:28:17] Speaker 02: The final written decision refers to the other decision. [00:28:20] Speaker 02: Where in your letter did you say that? [00:28:22] Speaker 02: I don't have that cite before me here. [00:28:24] Speaker 04: Well, you don't have to give me a site. [00:28:32] Speaker 02: Did you actually say, we have these other arguments in motivation of the law that you're in line with? [00:28:35] Speaker 02: There's no grounds for reversal there. [00:28:37] Speaker 05: So I don't know if I made that specific point. [00:28:38] Speaker 05: You're not answering my question. [00:28:39] Speaker 02: I don't recall making that argument. [00:28:40] Speaker 02: OK. [00:28:41] Speaker 02: So let me just briefly address the last argument, which frankly I think could be the easiest argument here, because it's just a straight substantial evidence issue. [00:28:51] Speaker 02: And this is the stop gate support. [00:28:55] Speaker 02: And there's a number of issues with Sandberg in the video, so there's an abusive discretion on the video. [00:29:00] Speaker 02: But all we need to determine here is if there's substantial evidence for the board's finding that the prior art was missing this limitation. [00:29:07] Speaker 02: The board went right to Figure 29 in the manual. [00:29:10] Speaker 02: You can look at this at Appendix 141. [00:29:12] Speaker 05: You made the board's distinction that the manuals don't show evidence. [00:29:20] Speaker 05: And do you think that's actually a legitimate distinction? [00:29:23] Speaker 02: I think that's one of the pieces that I don't have to rely on, but what's much more important is this figure 29. [00:29:28] Speaker 02: So we've got the stop gate that can be supporting the food, and the issue is what is the lift tray doing? [00:29:35] Speaker 02: And is it supporting it at the right time? [00:29:38] Speaker 02: And you can tell from figure 29, and what the board's finding, the stop gate has to be in the floor position in order to meet the climb location. [00:29:46] Speaker 02: I think we all agree about that. [00:29:48] Speaker 02: You look at figure 29, this is ejecting the end pieces, this is the end of the cell phone, [00:29:53] Speaker 02: The stop gate is in the up position, the opposite position. [00:29:56] Speaker 02: It's blocking the food path. [00:29:57] Speaker 02: It's not happening in Florida. [00:29:59] Speaker 02: That's the substantial evidence right there, Your Honor. [00:30:01] Speaker 02: Figure 29 is supported by expert testimony and the rest of the art here, but that figure 29 is key because it shows that the stop gate's in the wrong position. [00:30:11] Speaker 02: at the relevant time of the claims. [00:30:13] Speaker 02: It's with trades moving back down and then stop trades in the wrong position. [00:30:17] Speaker 03: And that's it. [00:30:17] Speaker 03: Is there any fact of dispute about what the video shows if we think that the video should not have been struck? [00:30:22] Speaker 02: Yeah, absolutely. [00:30:23] Speaker 02: The video, you know, that came in on reply. [00:30:26] Speaker 02: So there is a fact of dispute. [00:30:27] Speaker 02: There is a fact of dispute. [00:30:28] Speaker 02: We don't know if it was a video or else who did it, one of us. [00:30:30] Speaker 02: We didn't have to step around that. [00:30:32] Speaker 01: Okay. [00:30:32] Speaker 01: You're out of time. [00:30:39] Speaker 04: My friend on the other side suggested that customer employees could not see the manuals. [00:30:54] Speaker 04: That's wrong. [00:30:55] Speaker 04: We have testimony. [00:30:56] Speaker 04: Sure. [00:30:57] Speaker 05: Yes, sir. [00:31:07] Speaker 05: Sure, correct. [00:31:09] Speaker 04: So the provisor has never disputed the merits of the video below, in the proceeding below. [00:31:14] Speaker 04: That is what the video shows. [00:31:15] Speaker 04: And it does show exactly what our expert testified that the manual showed. [00:31:19] Speaker 04: Namely, the stockade in the supporting position, and the lift rate begins lowering during that slicing process. [00:31:26] Speaker 04: And so it corroborates our expert's testimony as to how he, as a person who's been there, would have read the manual. [00:31:32] Speaker 04: So he responded directly to provisor's challenge [00:31:35] Speaker 04: to our prime official case. [00:31:36] Speaker 05: Can I ask you about a different point that's been suggested just now that we can't reverse because there's still litigation with combined issues in the religious. [00:31:46] Speaker 05: Did you see that return from what I've heard? [00:31:49] Speaker 04: I didn't, Your Honor. [00:31:50] Speaker 03: I don't believe they ever asked for remand. [00:31:52] Speaker 03: Going back to the video, did they ever have a chance to challenge the merits of it? [00:31:57] Speaker 03: They filed a motion to strike it, and then they prevailed, right? [00:32:01] Speaker 04: That's correct, Your Honor, but they didn't say their motion [00:32:05] Speaker 04: to exclude the evidence that the evidence was somehow not authenticated or didn't actually show that the 904 Slicer did. [00:32:12] Speaker 04: They didn't argue in any of their briefing that the video evidence didn't show what we said to Janet. [00:32:21] Speaker 04: Did they have discovery on it, or did they not? [00:32:25] Speaker 04: No, Your Honor, they didn't. [00:32:28] Speaker 04: We submitted Wells Properly before the board, and the board abused its discretion by willfully blinding itself. [00:32:34] Speaker 04: to the video. [00:32:35] Speaker 04: But to be clear, we believe that we win solely on the manual, and to the extent there was any ambiguity as to what the manual discloses, we had a tiebreaker in the record that that was the video. [00:32:47] Speaker 04: Okay. [00:32:47] Speaker 04: Happy to answer any other questions? [00:32:50] Speaker 04: No further questions. [00:32:51] Speaker 01: Okay. [00:32:51] Speaker 01: Thank you. [00:32:52] Speaker 01: We thank the parties for their arguments. [00:32:54] Speaker 01: This case will be taken on by Roger.