[00:00:00] Speaker 02:
Okay, our next appeal is 22-1373.

[00:00:04] Speaker 02:
Yeeta LLC versus McNeil IP LLC.

[00:00:12] Speaker 01:
Mr. Walters, whenever you're ready.

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

[00:00:16] Speaker 01:
This is a consolidated appeal with two primary issues.

[00:00:19] Speaker 01:
You have the issue in the 1139 IPR dealing with secondary considerations.

[00:00:25] Speaker 01:
There's the issue in the 1142 IPR dealing with some evidence that wasn't considered on the reply.

[00:00:31] Speaker 01:
I'll address the issue in the 1139 appeal first.

[00:00:37] Speaker 01:
That was an IPR.

[00:00:39] Speaker 01:
where the board found all elements of the claims of the 186 patent taught by the prior art, a motivation to combine the prior art, and a reasonable expectation of success.

[00:00:52] Speaker 01:
None of those findings are challenged with a cross-appeal, and that's why we asked for a reversal in this case, because the board erred in applying a presumption of nexus between the claims of the 186 patent and the WeatherTech floor trays.

[00:01:07] Speaker 01:
The WeatherTech floor trays, the evidence was that they conformed within 1 16th of an inch for all four sidewalls.

[00:01:14] Speaker 01:
The claims of the 186 patent on the other hand only claim one requires any level of conformance.

[00:01:20] Speaker 01:
It says closely conforming and only for two of the four sidewalls.

[00:01:26] Speaker 01:
So the WeatherTech floor trays vastly exceeded the scope of the claim.

[00:01:31] Speaker 01:
And for that reason, they were not co-extensive with the claims of the 186 patent.

[00:01:36] Speaker 01:
And a presumption of nexus in this case was improper.

[00:01:41] Speaker 01:
We think Fox Factory is directly on point, like the greater than 80% gap-filling feature in that case.

[00:01:48] Speaker 02:
Coextensiveness?

[00:01:49] Speaker 02:
That's a fact-finding, right?

[00:01:52] Speaker 01:
That's right, Your Honor, but it has to be supported by substantial evidence.

[00:01:55] Speaker 01:
And there is no substantial evidence in this case to reach a conclusion that the WeatherTech floor trays are coextensive with closely conforming for two of the four sidewalls.

[00:02:07] Speaker 00:
How perfect is the fit?

[00:02:10] Speaker 01:
How perfect does the fit have to be?

[00:02:12] Speaker 00:
When you're looking at a Nexus and you're trying to see if the claims are co-extensive, so I'm not talking about the fit of the product, but the fit of the claim with the... How perfect does that fit have to be in order to satisfy Nexus?

[00:02:26] Speaker 00:
Because there is a fit here.

[00:02:28] Speaker 00:
It's just a little loose.

[00:02:29] Speaker 01:
Right.

[00:02:29] Speaker 01:
Well, so Fox Factory does address this issue.

[00:02:33] Speaker 01:
It's a spectrum.

[00:02:34] Speaker 01:
So on the one hand, you have perfect co-extensiveness where the product lines up exactly with everything that's in the claim.

[00:02:42] Speaker 01:
And on the other hand, you have merely a component of the machine or process that's the subject of the secondary considerations.

[00:02:49] Speaker 01:
And what we have in this case is we just have two of the four sidewalls that are closely conforming.

[00:02:57] Speaker 01:
So just two of the four sidewalls

[00:02:59] Speaker 02:
You know have any requirement of the four sidewalls closely conforming that's reciting the claim or is that the product?

[00:03:07] Speaker 01:
That's the product your honor So so the evidence was the biggest reason and this is from from their argument that the biggest reason why these floor trays were Successful why they satisfied the long felt need is because they fit better than any other Floor tray that was offered by a competitor now that fit absurd You're saying I just want to understand the claim recites

[00:03:29] Speaker 00:
two of the four walls have to be closely conforming.

[00:03:32] Speaker 00:
And your point is that the product is successful because all four sides are within 1-16 inch.

[00:03:39] Speaker 00:
Is that right?

[00:03:40] Speaker 01:
That is correct, Your Honor.

[00:03:41] Speaker 01:
And so the products exceed the scope of the claim.

[00:03:44] Speaker 01:
And so for that reason, it's a separate invention.

[00:03:47] Speaker 01:
I mean, we have a separate patent here that claims a minimum level of conformance, and that's the 834 patent.

[00:03:53] Speaker 01:
The level of conformance that was achieved by the WeatherTech floor trace is twice as much, twice as close as what is claimed as the minimum level of conformance in a separate patent.

[00:04:03] Speaker 01:
What you have in the 186 patent is you have just two of the four sidewalls have to be closely conforming and that was a term that was interpreted by the board to merely require some close spatial relationship.

[00:04:16] Speaker 01:
I think if you look at Fox Factory, McNeil or WeatherTech, they were in the best position to put on direct evidence that as long as you have two of the four sidewalls, that would solve the problem in the prior art or that would create this commercial success.

[00:04:35] Speaker 01:
the evidence is all directed to four sidewalls fitting within one sixteenth of an inch.

[00:04:43] Speaker 02:
As a fact-finding matter we look at the claim as a whole and of course we look at the individual elements but we conclude that we can't really reverse the co-extensive because the WeatherTech products really are

[00:04:55] Speaker 02:
very, very close to what's been recited in the claim.

[00:05:00] Speaker 02:
So then let's get to your next question, which is to what extent have you rebutted the presumption?

[00:05:06] Speaker 01:
Right, Your Honor.

[00:05:06] Speaker 01:
So making that assumption, there was inconsistent treatment between the two boards' decision on this particular point.

[00:05:17] Speaker 01:
If you look at the 1142 IPR at the appendix 138 to 139, claims 13 through 15 of the 834 patent were found unpatentable.

[00:05:29] Speaker 01:
And they couldn't be saved by secondary considerations.

[00:05:33] Speaker 01:
The argument was that the integration of baffles

[00:05:36] Speaker 01:
was part of the prior art.

[00:05:40] Speaker 01:
And so the board found in the 1142 IPR at appendix 138 to 139 that industry praise of the integrated baffles was insufficient to save those claims because that was part of the prior art.

[00:05:54] Speaker 01:
But in the 1139 IPR at appendix sites 74 to 75,

[00:05:59] Speaker 01:
Closely conforming of floor trays even though they were found in the prior art That analysis was treated different.

[00:06:08] Speaker 01:
They discounted the board discounted that analysis and they said well because it wasn't well known Coast conforming wasn't well known in the prior art we are going to

[00:06:19] Speaker 01:
you know, find secondary considerations.

[00:06:21] Speaker 00:
So is your view that's well known as legal error?

[00:06:24] Speaker 01:
We do.

[00:06:25] Speaker 00:
And that our case law only says it has to be in the part.

[00:06:28] Speaker 00:
Here the board specifically found that rape taught that element.

[00:06:34] Speaker 01:
That's correct, Your Honor.

[00:06:35] Speaker 01:
And so that is our position.

[00:06:37] Speaker 01:
And of course, that's the fact.

[00:06:38] Speaker 00:
What about WVIP?

[00:06:40] Speaker 00:
That's the opinion they cite on that page that you're referring to.

[00:06:44] Speaker 00:
What it cites to in WVIP does say that in circumstances where the objective criteria of non-obviousness, where that is linked to that claim as a whole, where it's shown that the claim as a whole is the reason for

[00:07:02] Speaker 00:
the commercial success or industry praise or what have you, that in fact you can't just look at whether one individual prior element is in the prior art, right?

[00:07:14] Speaker 00:
One individual claim element is in the prior art.

[00:07:17] Speaker 00:
How do you respond to that?

[00:07:18] Speaker 00:
How does that factor in this case?

[00:07:20] Speaker 01:
Thank you, Your Honor.

[00:07:21] Speaker 01:
So that case is distinguishable.

[00:07:23] Speaker 01:
In WBIP, first of all, there was no dispute that the application of the presumption was never challenged in WPIP.

[00:07:31] Speaker 01:
So that's one point of distinction.

[00:07:33] Speaker 01:
And it was also agreed in WBIP that we're starting from an allegedly novel combination of prior art elements.

[00:07:44] Speaker 01:
And the evidence that was submitted to the board was that closely conforming was novel.

[00:07:50] Speaker 01:
It wasn't something, it was alleged by McNeil that it wasn't something in the prior art, that it was a novel thing.

[00:07:56] Speaker 01:
And so there was no attempt below to draw a connection between the combination of elements

[00:08:05] Speaker 01:
and the evidence of secondary consideration.

[00:08:09] Speaker 01:
So there was no, and in fact the board.

[00:08:12] Speaker 00:
Is there, what is the evidence of secondary consideration show as to what is the reason and what is the testimony on what is the reason for why they're commercially successful or what the industry was directed to?

[00:08:26] Speaker 01:
So the board specifically found that the arguments, the evidence of secondary considerations was tied to the fit of the floor tray.

[00:08:38] Speaker 01:
And I'm going to get you an appendix citation for that.

[00:08:44] Speaker 01:
And that's at Appendix Site 139 from the final written decision in the 1142.

[00:08:50] Speaker 01:
With respect to the claims 13 through 15, the board said, we find that the industry prey is cited by Mr. Sherman.

[00:08:56] Speaker 01:
Now, it's important to note that the evidence on secondary considerations was identical for both IPRs.

[00:09:02] Speaker 01:
But this is in the final written decision of the 1142 IPR.

[00:09:07] Speaker 01:
We find that the industry prey cited by Mr. Sherman

[00:09:11] Speaker 01:
And the patent owner relates specifically to the close conformance of weather tech floor trays to the surface of the footwell So there's that finding again unchallenged with with the cross appeal but it's also not something that really could be challenged because The way that this was litigated before the board was that these floor trays are successful Primarily because of the way they fit and here's and the evidence also confirmed that all four tray walls

[00:09:41] Speaker 02:
response for industry praise, there is a section, a brief section that talks about how the industry participants have praised WeatherTech's floor trays for features described and claimed in the 186 pattern, including closeness of fit, the bath

[00:10:02] Speaker 02:
period.

[00:10:03] Speaker 02:
So at least for industry praise, it seems like they were relying on a little bit more than just good fit as a basis for that secondary consideration of this.

[00:10:18] Speaker 01:
And so in my memory of that part of the record, Your Honor, is that

[00:10:22] Speaker 01:
A lot of those things have come straight from the patent specification about statements that about it wasn't necessarily we're going to put on a case to show that There is this industry praise because of this and there are there are also other problems with their their case for industry praise I mean it was mostly retailer statements.

[00:10:41] Speaker 01:
It's not like there was an award from an industry competitor or something like that and

[00:10:45] Speaker 01:
We have what has been described in other cases by this court as very weak evidence of secondary considerations.

[00:10:53] Speaker 00:
What about Mr. Granger?

[00:10:55] Speaker 00:
This is just on the commercial success.

[00:10:57] Speaker 00:
Mr. Granger, did he talk about something other than commercial success?

[00:11:01] Speaker 00:
Wasn't he the main expert?

[00:11:04] Speaker 00:
He provided the main evidence of commercial success.

[00:11:06] Speaker 00:
He did.

[00:11:06] Speaker 01:
Mr. Granger was the main expert.

[00:11:07] Speaker 00:
What did he tie the commercial success to?

[00:11:09] Speaker 01:
So he tied the commercial success to the WeatherTech floor trays, which he said in his declaration, the vast majority of which, he says, in some places, 95% of which, 49 out of 50 in their test runs, all four sidewalls conform to within 1 16th of an inch.

[00:11:29] Speaker 01:
So that was his evidence.

[00:11:31] Speaker 00:
What did he attribute?

[00:11:33] Speaker 00:
I think I know the answer, but what did he attribute

[00:11:36] Speaker 00:
the commercial success to?

[00:11:39] Speaker 00:
Attributed to many features of the WeatherTech floor trays or a particular feature?

[00:11:45] Speaker 01:
So I believe his testimony was the biggest reason.

[00:11:49] Speaker 01:
And I think that's a quote, the biggest reason.

[00:11:51] Speaker 01:
89056, paragraph 34.

[00:11:55] Speaker 01:
Right.

[00:11:55] Speaker 01:
So that's the biggest reason.

[00:11:57] Speaker 01:
So that's what we have.

[00:11:58] Speaker 01:
And before I get into my rebuttal time, I'd like to really briefly touch on the 1142 issue, if I may.

[00:12:05] Speaker 01:
So Your Honor, the argument was, or the finding from the board, which we believe is clearly erroneous.

[00:12:11] Speaker 02:
Abuse of discretion, you mean.

[00:12:13] Speaker 01:
Sorry, abuse of discretion, but also a clear error in the, well, sorry, abuse of discretion in what they found.

[00:12:22] Speaker 01:
So the finding was that the argument regarding routine optimization wasn't made in the petition.

[00:12:28] Speaker 01:
But from page appendix site 14237, let me just read you the brief argument here on that page.

[00:12:36] Speaker 01:
Quote, additionally,

[00:12:37] Speaker 01:
Given the relatively low mold cost for thermoforming molds, Aposo would have been able to make molds for different vehicle interiors or different areas of the vehicle interior and adjust the mold making process to achieve even greater conformity with the vehicle interior.

[00:12:53] Speaker 01:
So that is an argument for routine optimization made in the petition.

[00:12:58] Speaker 02:
Is that in the reasonable expectation success section of the petition?

[00:13:02] Speaker 01:
It is, but the reason it's there, Your Honor, is because we disclosed in RAB and the board found that RAB, regardless of whose translation you look at, touched the sidewall.

[00:13:11] Speaker 01:
So you've got zero in that range that's claimed.

[00:13:14] Speaker 01:
The claim claims one eighth to zero, basically.

[00:13:18] Speaker 01:
of conformance.

[00:13:20] Speaker 01:
And so we disclosed an example in RAB of zero conformance.

[00:13:24] Speaker 01:
And the argument made in the petition was that one of ordinary still in the art would have been able to look at available technologies to make whatever kind of level of conformance you want.

[00:13:34] Speaker 01:
And that's exactly the kind of argument that's made here in the petition.

[00:13:38] Speaker 00:
Now the- Why is it unfair at the board to look at page 14230 and 14229 and read that as

[00:13:47] Speaker 00:
understanding the petition asserts that Rabe discloses or suggests the claim element, and there's nothing else that needs to be done.

[00:13:54] Speaker 00:
There's no optimization or obviousness argument with respect to whether Rabe teaches this argument.

[00:14:01] Speaker 01:
Because, Your Honor, the argument was never made for Rabe in isolation.

[00:14:05] Speaker 01:
And this is something that they do in their red brief.

[00:14:08] Speaker 01:
And we never argued Rabe by itself.

[00:14:11] Speaker 01:
We argued Rabe in New York.

[00:14:12] Speaker 00:
What do you mean Rabe by itself teaches

[00:14:14] Speaker 00:
what, the full claim, or teaches his claim element?

[00:14:18] Speaker 00:
Because I do think you argued that Reeb, a rab, by itself teaches his claim element.

[00:14:23] Speaker 01:
We didn't, Your Honor.

[00:14:24] Speaker 01:
And let me say that what we did argue is that it teaches an example of falling within the range.

[00:14:29] Speaker 01:
The claim element, again, is a range.

[00:14:31] Speaker 01:
It's 1,8 to 0.

[00:14:33] Speaker 01:
Rab, we say it talked about perfect conformance.

[00:14:36] Speaker 01:
Now that was challenged with a new translation and so what we did in reply is we said it doesn't matter whose translation you look at, Rab discloses an example of something falling in that range.

[00:14:47] Speaker 01:
Now one of ordinary skill in the art would know how to make whatever kind of conformance you want within that range.

[00:14:53] Speaker 00:
But it says right here, rave discloses, or at least suggests, having at least 90% of the one third of the outer surface of the trays walled and goes through the rest of the claim limitation that we're talking about.

[00:15:05] Speaker 00:
How am I supposed to understand that that means that you're arguing that it would have been obvious to modify rave to meet the claim limitation?

[00:15:15] Speaker 00:
if you're already saying that RAB does meet the claimant limitation.

[00:15:18] Speaker 01:
So our argument here in this page of the petition at 14230 says, discloses or at least suggests.

[00:15:25] Speaker 01:
So I think there was a recognition that RAB didn't say 1 eighth of an inch to zero.

[00:15:30] Speaker 01:
It talked about perfect conformance.

[00:15:32] Speaker 01:
Then that was challenged in the patent owner's response.

[00:15:34] Speaker 01:
So this is very similar to the Erickson case.

[00:15:36] Speaker 01:
where a different claim construction was then proffered at the stage of the patent order's response.

[00:15:42] Speaker 01:
And in the reply, there was an opportunity then to expand arguments made in the petition, which is all that we did on reply.

[00:15:50] Speaker 02:
OK.

[00:15:50] Speaker 01:
I think we have your argument.

[00:15:51] Speaker 02:
You're out of time, but we'll give you a couple of minutes for rebuttal.

[00:15:54] Speaker 01:
Thank you, Your Honor.

[00:16:01] Speaker 03:
Mr. Will?

[00:16:02] Speaker 02:
Willie, Your Honor.

[00:16:03] Speaker 03:
Willie, OK.

[00:16:04] Speaker 03:
Please, the court, Your Honor.

[00:16:05] Speaker 02:
Yes.

[00:16:06] Speaker 03:
OK, thank you.

[00:16:08] Speaker 03:
The patent trial and appeal board properly found that McNeil's objective evidence was, and I quote, compelling evidence of non-obviousness, unquote.

[00:16:19] Speaker 03:
That compelling evidence included evidence of commercial success, a long-felt need, and industry praise.

[00:16:27] Speaker 02:
What does our case law say if all of your compelling evidence is directed to a claim element that was known in the prior art?

[00:16:36] Speaker 03:
So I would say the case law is mixed on that.

[00:16:40] Speaker 02:
What does ONCO and Ethicom say about this particular issue?

[00:16:46] Speaker 03:
That's not what the court, that's not what the PTAB found here.

[00:16:50] Speaker 03:
The PTAB did not find that the evidence was directed to an element in the prior art.

[00:16:57] Speaker 03:
It found that the evidence was directed to the claim as a whole.

[00:17:01] Speaker 03:
Its analysis.

[00:17:04] Speaker 00:
Where does your evidence say that it's directed to the claim as a whole?

[00:17:09] Speaker 00:
Even if they found that, I think what they said was it has to be well known.

[00:17:14] Speaker 00:
But even if they did find that it's directed to the claim as a whole, I went through your evidence.

[00:17:20] Speaker 00:
And it seems to be directed to one claim element, which is the close conformance claim element.

[00:17:24] Speaker 00:
So we've got an appendix.

[00:17:26] Speaker 00:
I would like for you to walk through for me, if you can, where the evidence is in the record so I can understand.

[00:17:33] Speaker 03:
OK.

[00:17:34] Speaker 03:
So appendix 73, the board's analysis

[00:17:39] Speaker 00:
What what but I want you to look at the actual evidence that was presented not the board's analysis of course read the board's analysis But I want to make sure This is your opportunity to show me that I'm wrong in understanding that your evidence is directed to close conformance so if you can I'd like you to go to the appendix and show me that

[00:18:00] Speaker 00:
uh... where i'm going to find that your evidence of secondary considerations was tied to the claim as a whole.

[00:18:08] Speaker 03:
Okay your honor, Judge Chen cited Mr. Granger's declaration and what Mr. Granger talks about in his declaration is the fit of the floor tray he does talk about the close conformance limitations being met

[00:18:25] Speaker 03:
But there were claim charts provided to show how all of the limitations were met.

[00:18:31] Speaker 03:
And the board recognized and cited Mr. Granger's claim charts, as well as his analysis of the claim as a whole.

[00:18:41] Speaker 03:
It is important for- I agree.

[00:18:45] Speaker 00:
So the analysis of the claim as a whole was for purposes of establishing a nexus, right?

[00:18:52] Speaker 03:
Yes, but it is the claim as a whole that gives you, let me explain how the claim as a whole gives you a trade that fits better than what the competition has.

[00:19:06] Speaker 03:
Because that's what the board said repeatedly at appendix 75, appendix 77, appendix 73, appendix 78, it's 79.

[00:19:16] Speaker 03:
It kept talking about the close conforming trade.

[00:19:19] Speaker 03:
If you simply had

[00:19:21] Speaker 03:
of two panels of something that closely conform.

[00:19:25] Speaker 03:
That doesn't give you anything.

[00:19:28] Speaker 02:
This is a... Does the claim, remind me again, it only calls for two walls to closely conform, but not the other two walls?

[00:19:38] Speaker 03:
The claim only requires the tray to have two walls, and it requires... To be closely conforming.

[00:19:45] Speaker 03:
It requires the central panel.

[00:19:46] Speaker 03:
Now, it only requires two panels because that's all you need.

[00:19:51] Speaker 03:
in some cases.

[00:19:53] Speaker 03:
And that's a separate argument I need to address.

[00:19:58] Speaker 03:
But I want to answer Judge Stoll's question, if I may, which is this claim is a very elegantly drafted claim.

[00:20:06] Speaker 03:
It requires a central panel, which substantially conforms.

[00:20:11] Speaker 03:
And one of the things that's important to understand about the walls is that the walls are not only the panels that closely conform,

[00:20:19] Speaker 03:
there are curved transitions between the central panel and the panels, the side panels.

[00:20:27] Speaker 03:
Those side panels are also required to be joined by a curved transition.

[00:20:33] Speaker 03:
If you didn't have that entire structure, you wouldn't get the good fit that you get.

[00:20:38] Speaker 03:
The patent talks about how the footwell has complex curves in it often and is concave.

[00:20:49] Speaker 03:
that central panel in the floor.

[00:20:54] Speaker 03:
that substantially conforms to the floor is following that.

[00:20:59] Speaker 03:
And so it is the combination of all of these that make the floor fit.

[00:21:03] Speaker 00:
I think I'm understanding your point now.

[00:21:05] Speaker 00:
Paragraph 84 of Mr. Granger's declaration, which was referenced earlier, says the biggest reason for the WeatherTech floor liners' commercial success based on the feedback received over the years is that they fit the footwells for which they were custom designed to a degree not achieved by competitors.

[00:21:24] Speaker 00:
That is correct, Your Honor.

[00:21:25] Speaker 00:
So you're saying that's from element in the claim, element A, the central panel substantially conforming, combined with other things?

[00:21:33] Speaker 03:
It's the combination as a whole, Your Honor.

[00:21:35] Speaker 03:
It's the central panel substantially conforming, curved transitions to the

[00:21:42] Speaker 03:
other panels and the curve transitions also relate to another thing that Mr. Granger talks about, which is how they have made a couple thousand of these to make them.

[00:21:53] Speaker 02:
Before you go any further, part of the prima facie case of obviousness is that all of these claim elements in your claims were known in the arts, right?

[00:22:04] Speaker 02:
Well, yeah, we disagree with that we think there's an alternative basis to a firm assume for the moment Substantial evidence supports those funds.

[00:22:13] Speaker 02:
Okay.

[00:22:13] Speaker 02:
Let's also read Ormco and Epicon for what they say and what they say is if the basis for commercial success or other secondary consideration evidence is

[00:22:27] Speaker 02:
things that were known in the prior arc, then your evidence of secondary consideration is essentially immaterial and irrelevant.

[00:22:36] Speaker 02:
If we put those two things together, that's the trouble I'm having with trying to understand how we can credit all of this secondary evidence the way that the board did, because the board seemed to misunderstand cases like Bormco and Epicon by when the board said,

[00:22:57] Speaker 02:
Well, it wasn't proven that the close fit element was well known in the art.

[00:23:02] Speaker 02:
But that's not the standard.

[00:23:03] Speaker 02:
The standard simply wasn't known in the art.

[00:23:05] Speaker 02:
If it's known in the art, and that's truly the merits of your claim convention, then you can't really use that as a benefit for secondary consideration.

[00:23:17] Speaker 03:
Objective evidence is often considered when there is a prima facie case of obviousness, which by definition, that means all of the elements have been found in the prior art.

[00:23:28] Speaker 03:
If you look at the Court's decision, the PTAB's decision, it did not base its findings on one claim element.

[00:23:37] Speaker 03:
That's my point, Your Honor.

[00:23:41] Speaker 02:
You know, at the very end of the commercial success, it says, we find the evidence of commercial success is due to the close conforming vehicle foretrade.

[00:23:50] Speaker 02:
Long felt need at 78, the evidence of long felt need is due to the close conforming vehicle foretrade.

[00:23:55] Speaker 02:
79, the evidence of industry phrase is due to the close conforming vehicle foretrade.

[00:24:03] Speaker 02:
everything hinges on the close conforming vehicle floor tray.

[00:24:07] Speaker 02:
That's known in the art.

[00:24:08] Speaker 03:
They said, no, it's not known in the art, your honor.

[00:24:10] Speaker 03:
The tray as a whole that fits like this is not known in the art.

[00:24:15] Speaker 03:
What they said, you'll notice in each of those passages that you quoted, is they said it's due to a close conforming vehicle floor tray.

[00:24:23] Speaker 03:
It doesn't say it was due to just having two panels closely conformed.

[00:24:28] Speaker 03:
If all you had was two panels that closely conformed, you would not have a good fitting tray.

[00:24:34] Speaker 03:
It is the claim as a whole, which is in their commercial success analysis, they cite the WVIP versus Kohler case, and they say it's based upon the claim as a whole that they are deciding this.

[00:24:48] Speaker 00:
Well, why isn't it based on

[00:24:51] Speaker 00:
a central panel substantially conforming combined with the first and second panels that are closely conforming.

[00:24:57] Speaker 03:
That's exactly right, Your Honor.

[00:24:59] Speaker 03:
It is all of those things together.

[00:25:02] Speaker 00:
Is there anything else in the claim, or is it just those things together?

[00:25:07] Speaker 03:
The claim requires the two panels that are closely conforming.

[00:25:12] Speaker 03:
It requires those to be joined together.

[00:25:15] Speaker 03:
by a curved transition.

[00:25:16] Speaker 03:
And so that means you have those two joined together.

[00:25:21] Speaker 02:
Did the board not find those elements in the prior art?

[00:25:26] Speaker 03:
It will always be the case when you're addressing objective evidence that the elements will be found in the prior art somewhere.

[00:25:33] Speaker 02:
Not necessarily.

[00:25:34] Speaker 02:
Sometimes it's not in the prior art, but there's a conclusion that a skilled artisan would modify the art in order to create that little element.

[00:25:44] Speaker 03:
The board did not find all of those elements in a single reference.

[00:25:50] Speaker 00:
What was the secondary reference relied on by the board?

[00:25:56] Speaker 03:
There were two secondary references, and they were relied upon for thermoforming, curve transitions, and things like that.

[00:26:07] Speaker 03:
So Judge Chen, you raised the issue of the four walls argument.

[00:26:11] Speaker 03:
So I have five responses to the four walls versus two walls argument.

[00:26:17] Speaker 03:
So the first argument is this argument was forfeited.

[00:26:21] Speaker 03:
This argument does not appear in the opening brief.

[00:26:24] Speaker 03:
There's a brief reference to it saying, well, four walls touch, two walls don't.

[00:26:32] Speaker 03:
But there's nothing in their opening brief.

[00:26:34] Speaker 03:
Page 32 is where that reference is.

[00:26:36] Speaker 03:
There's nothing in their opening brief saying that that has an impact on the Nexus or explaining how it has an impact on Nexus.

[00:26:44] Speaker 03:
There was no evidence, second, there was no evidence presented in the district court that having two walls conform versus having four walls conform makes any difference to the fit of the tray.

[00:26:56] Speaker 03:
Third, they overstate the record.

[00:27:04] Speaker 03:
They overstated the record today.

[00:27:07] Speaker 03:
They said, Granger said all four walls had to touch.

[00:27:10] Speaker 03:
There is nothing in Granger's testimony that says all four walls have to touch.

[00:27:15] Speaker 03:
If you look at all the citations in the reply brief for that proposition.

[00:27:18] Speaker 00:
This argument that you've referred to, this is the nexus argument, presumption of nexus, right?

[00:27:24] Speaker 00:
Yes.

[00:27:25] Speaker 00:
Because the page 32 you're referring to is talking about Fox factor.

[00:27:28] Speaker 00:
That's all about presumption of nexus.

[00:27:31] Speaker 00:
Correct.

[00:27:31] Speaker 00:
So in your view, all you do in that circumstance, you've got to look at the fit between the claim and the commercial product.

[00:27:42] Speaker 03:
Right?

[00:27:43] Speaker 00:
Exactly, Your Honor.

[00:27:43] Speaker 00:
And so you agree that there is a difference between the commercial product and the claim.

[00:27:49] Speaker 00:
The question is whether that difference is significant enough to make it so the nexus isn't satisfied.

[00:27:57] Speaker 03:
That's correct.

[00:27:58] Speaker 03:
And what this court has said in Fox Factory and in Quanergy

[00:28:02] Speaker 03:
is that that is a factual determination for the finder of fact to make based upon the record before them.

[00:28:08] Speaker 03:
Where are we on this spectrum?

[00:28:12] Speaker 03:
And without any evidence that it matters whether four walls versus two walls are within a sixteenth of an inch, there is substantial evidence for the PTAB's conclusion.

[00:28:24] Speaker 03:
Now, there's a very good reason why the claim is why it is.

[00:28:29] Speaker 03:
And if you think about every car you've ever been in, because it may not be enough to think of your own car, because they vary.

[00:28:37] Speaker 03:
Particularly at the back of the seat, sometimes there is no footwell at the back of the seat.

[00:28:43] Speaker 03:
Sometimes the seat is flush with the floor, or sometimes there's a seat bracket that's flush with the floor.

[00:28:49] Speaker 03:
So you wouldn't have a wall there sometimes.

[00:28:52] Speaker 03:
Or you might have something that's really just a curved transition, because you can't get high enough to have a panel.

[00:28:58] Speaker 03:
It depends upon

[00:28:59] Speaker 03:
the vehicle.

[00:28:59] Speaker 03:
It depends upon how the vehicle is made.

[00:29:02] Speaker 03:
It depends upon where the seat sits.

[00:29:05] Speaker 03:
And the seat slides back and forth, so that needs to be taken into account.

[00:29:10] Speaker 03:
So there's a good reason why the claim is why it is.

[00:29:14] Speaker 03:
What there is not in this record is any evidence that it matters to the industry praise, to the commercial success, to the long felt need, to the fit of the tray.

[00:29:26] Speaker 03:
whether two walls are within a certain tolerance or whether four walls are within a certain tolerance.

[00:29:35] Speaker 03:
For that reason, the court has ample evidence to affirm there was substantial evidence for the PCAB's conclusion.

[00:29:47] Speaker 03:
Sorry, one more point on the waiver argument.

[00:29:56] Speaker 03:
For example, on page four of their reply brief, they say that achieving 1 16th of an inch tolerance on all four sidewalls, no reasonable fact finder could conclude that achieving that tolerance on all four sidewalls was anything but critical to the alleged success of the floor trace.

[00:30:19] Speaker 03:
That's new in the reply brief.

[00:30:20] Speaker 03:
There's no argument about four walls versus two walls being critical.

[00:30:25] Speaker 03:
On page 12, they refer to some dependent claims.

[00:30:28] Speaker 03:
Those were never referred to in the opening brief.

[00:30:32] Speaker 03:
So consequently, you're not going to see anything in our brief responding to this, because it's just a passing comment.

[00:30:38] Speaker 00:
Do you have any response you want to make here?

[00:30:41] Speaker 03:
Well, I think I've made the responses, Your Honor.

[00:30:43] Speaker 03:
There's a good reason why the claim is the way it is, because you don't need four walls

[00:30:49] Speaker 03:
to have a good fitting tray when you have this claimed structure as a whole, which includes a substantially conforming central panel, curved transitions to side walls, which are themselves joined by a curved transition, which essentially means you have two walls that form a corner.

[00:31:09] Speaker 03:
And the board found that Rab teaches all that, right?

[00:31:14] Speaker 03:
No, the board did not find that Rob teaches all that.

[00:31:17] Speaker 02:
So then therefore there's a missing limitation in the prima facie case?

[00:31:22] Speaker 03:
Rob does not teach the curved transitions.

[00:31:26] Speaker 03:
We contend that Rob does not teach close conformance.

[00:31:30] Speaker 03:
Right.

[00:31:31] Speaker 03:
We don't think there's substantial evidence for that conclusion.

[00:31:33] Speaker 00:
Which reference does the board rely upon and the petitioner rely upon for the smooth transition?

[00:31:40] Speaker 03:
I believe they relied on the thermoforming reference, so there's a thermoforming treatise, which suggests that when you thermoform things that you may... But for the closely conforming first and second wall, for the closely conforming central panel, they found that Rav teaches those things.

[00:31:57] Speaker 02:
That's correct.

[00:31:58] Speaker 02:
Okay.

[00:32:05] Speaker 01:
Just a couple brief points, Your Honor.

[00:32:07] Speaker 01:
I want to go back to Mr. Granger's declaration at Appendix Site 9056.

[00:32:13] Speaker 01:
Paragraph 84, he says, the biggest reason for WeatherTech Floor Liners' commercial success, based on feedback received over the years, is that they fit the footwells for which they were custom designed.

[00:32:23] Speaker 01:
And the important part here is, to a degree, not achieved by competitors.

[00:32:28] Speaker 01:
And then he goes on at paragraph 85, the 1 16th inch tolerance of our floor tray manufacturing process ensures such closeness of fit.

[00:32:38] Speaker 01:
And to get an idea of what he's talking about when he says the 1 16th inch, you have to go to his other declaration in the same IPR.

[00:32:45] Speaker 01:
It's at appendix site 11306.

[00:32:48] Speaker 01:
And this gets to this argument that's being made about, well, it was really a combination of the central panel and the four panels.

[00:32:53] Speaker 01:
And that was the reason for the commercial success.

[00:32:56] Speaker 01:
But here you have Mr. Granger saying the 1-16 inch conformance is the reason.

[00:33:01] Speaker 01:
That ensures the post is a fit.

[00:33:04] Speaker 01:
Paragraph 70, appendix site 11306.

[00:33:08] Speaker 01:
Note that in order to pass the floor panel, the central panel has to be within 1-8th of an inch.

[00:33:13] Speaker 01:
So it can't be talking about the central panel.

[00:33:15] Speaker 01:
That only has to go to within 1-8th of an inch.

[00:33:18] Speaker 01:
And then paragraph 71, the sidewalls, we're talking about ones with four sidewalls, if there is a version that has three sidewalls, that certainly encompasses all the sidewalls.

[00:33:29] Speaker 01:
The sidewalls or side panels of the tray must conform more tightly to the sidewalls, so more tightly than the central panel.

[00:33:35] Speaker 01:
Central panel is only one-eighth of an inch.

[00:33:37] Speaker 01:
Side panels, one-sixteenth of an inch.

[00:33:39] Speaker 01:
Again, that's the thing that ensures the closeness of fit.

[00:33:42] Speaker 01:
Those have to be more tightly to the sidewalls of the vehicle footwell.

[00:33:47] Speaker 01:
The external surfaces of the side panels should be within one-sixteenth of an inch of the vehicle footwell.

[00:33:52] Speaker 01:
So it absolutely is the case, Your Honor, that their evidence that they put on below was that commercial success, long-failed need, industry praise was all the result of this unclaimed degree of conformance.

[00:34:05] Speaker 01:
And he says, well, there's no evidence about whether two walls make a difference over four walls.

[00:34:09] Speaker 01:
Well, that was their burden to try and come up with some kind of evidence for that because the claims are just not co-extensive with the products.

[00:34:19] Speaker 01:
Unless there's a question, Your Honor, I'm out of time.

[00:34:22] Speaker 01:
Thank you.

[00:34:23] Speaker 01:
Thanks.

[00:34:24] Speaker 01:
The case is submitted.