[00:00:00] Speaker 02:
The case this morning is number 23-1801, Converter Manufacturing, LLC, versus Techniflex.

[00:00:09] Speaker 02:
Okay, Mr. Furko.

[00:00:16] Speaker 03:
Thank you, Your Honor.

[00:00:17] Speaker 03:
May I please support?

[00:00:18] Speaker 03:
This case involves a rectangular thermoformed article having a smooth periphery.

[00:00:23] Speaker 03:
such as a tray, that before 2016 was thought by others in the industry to be impossible to make.

[00:00:30] Speaker 03:
However, on August 31, 2015, a patent, the patent owner, made, disclosed, and claimed the world's first rolled-edge rectangular thermoformed article.

[00:00:40] Speaker 03:
And as the first to make such an article, the patent owner created the market for these products and garnered all the praise and commercial success that could be expected from an industry that was looking to obviate the need for environmentally unfriendly

[00:00:52] Speaker 03:
rectangular foam trays and a solution to remove the sharp edge that resulted from making rectangular thermal forms of products.

[00:00:58] Speaker 04:
Counsel, is your primary argument that there are three key prior references that are not enabled?

[00:01:04] Speaker 04:
Is that what you're primarily hanging your head on?

[00:01:07] Speaker 03:
Your Honor, there's actually a fourth.

[00:01:10] Speaker 03:
The combination of two of those references is also enabled.

[00:01:12] Speaker 03:
Yes, Your Honor.

[00:01:13] Speaker 03:
Well, they are not enabled.

[00:01:16] Speaker 03:
And furthermore, that the evidence that supports that also would militate towards finding non-obviousness and lack of anticipation as well.

[00:01:26] Speaker 03:
And so what happens here, and those three references, Your Honor, are the Meadows, Portelli, and Long reference.

[00:01:31] Speaker 03:
So I think it does make sense to talk about the standard of review, which I think my colleagues seem to suggest almost outright bars this court from looking at any of these factual findings, but I would suggest that in this court's decision in the MacGuffin v. Social Security Administration,

[00:01:46] Speaker 03:
Substantial evidence requires that one review the whole record, including that which detracts.

[00:01:51] Speaker 03:
In fact, it even says, quote, substantiality of evidence must take into account whatever in the record fairly detracts from its weight.

[00:01:57] Speaker 03:
Now, assuming for the moment that Mr. May, the petitioner's expert, had looked at textbooks and found that

[00:02:04] Speaker 03:
Well, something doesn't always result in a particular failure, or that it may only likely, but not always, result in a defect.

[00:02:10] Speaker 03:
Your Honor's need look no further than evidence.

[00:02:12] Speaker 03:
In fact, a lot of this came from the petitioner themselves.

[00:02:16] Speaker 03:
Evidence that Dexter MT, a third party which they believe practiced one of these references, that they say has a nexus, in fact.

[00:02:24] Speaker 03:
This party publicized that the method that it uses, the method which they say practices the Portelli method,

[00:02:30] Speaker 03:
was impossible to achieve the claimed embodiment prior to 2016, a year after the filing date, but it goes further.

[00:02:39] Speaker 03:
And this unfortunately was not considered in the final written decisions, but this Williams email from March of 2018 to me

[00:02:47] Speaker 03:
is the closest evidence, because Petitioner didn't put in any, to show that an embodiment of the claims, the patent owner, my client's 3P trade, could not be made by this rolled rim in mold, RRIM process that they say.

[00:03:03] Speaker 01:
Did you raise the Williams email in your patent owner response or in the server file?

[00:03:08] Speaker 03:
In the surpli, Your Honor.

[00:03:10] Speaker 01:
Was there something preventing you from raising it in your patent owner response?

[00:03:15] Speaker 03:
Your Honor, we did not raise in the patent owner response because we did not know that Petitioner was going to be relying on Dexter MT to suggest that they could overcome our bottle of the presumption of enablement.

[00:03:26] Speaker 03:
And so in response to that statement, in fact, what happened in this case is that Mr. May testified that he relied on Mr. Willems to say that the Portelli method was enabled.

[00:03:36] Speaker 03:
Well, it happened that my client had

[00:03:38] Speaker 03:
reached out to Mr. Williams and Dexter M.T.

[00:03:40] Speaker 03:
to see whether Dexter M.T.

[00:03:42] Speaker 03:
could help them make, you know, as a secondary option, to make embodiments of the claimed articles, and they couldn't.

[00:03:51] Speaker 03:
And in a way, since petitioner believes that the proving that any embodiment didn't have to meet a particular claim limitation, all they have is evidence that after the filing date, there are these articles

[00:04:07] Speaker 03:
somehow practicing the methods of these references, there's been no proof on the record at all that these articles even met the claim limitations.

[00:04:15] Speaker 03:
But we know from the Williams email that when asked, when Dexter MT was asked, make an embodiment of the claim, they said they couldn't do it without, quote, an extensive series of tests and optimizations.

[00:04:29] Speaker 03:
He also referred to unknowns and

[00:04:30] Speaker 03:
determining whether what they think will happen will actually happen.

[00:04:34] Speaker 03:
This type of documentary evidence, I think, detracts from whatever substantial evidence the petitioner claims the board had found.

[00:04:46] Speaker 03:
It had the board actually consider these things and resolve in the issue of undue experimentation.

[00:04:52] Speaker 03:
These documents show that skilled artisans did not have the ability, even as of 2018, to use this portelli-like method, assuming that it was a portelli-like method, to accomplish the claimed embodiments, which is key to... This looks as though you're just arguing about whether the board's fact findings are correct.

[00:05:14] Speaker 03:
I think we are saying that substantial evidence review, which requires the consideration of that which detracts from it, certainly there was no substantial evidence to support a finding that these preferences could make a clean embodiment without undue experimentation.

[00:05:32] Speaker 03:
We are saying that, but even from a legal aspect,

[00:05:35] Speaker 03:
Once Patent Owner had reported the presumption, which under Morse required, again, a reasonable or non-frivolous argument that the references here Portelli, Metters, and Wong could not accomplish the claim in volume, then it was incumbent upon Petitioner

[00:05:51] Speaker 03:
the challenger to come forward with evidence of enablement.

[00:05:54] Speaker 03:
And contrary to this case, this court's Raytheon decision, which Judge Chen authored, the issue was that here the petitioner's expert did nothing like the petitioner did in the Raytheon case.

[00:06:09] Speaker 03:
There's no simulations, despite all the textbook examples he gave that all these problems that we identified could be resolved with, quote,

[00:06:16] Speaker 03:
There's not one.

[00:06:17] Speaker 03:
All they rely on is saying, look, in 2016, 2017, there's these third parties that made these other articles.

[00:06:24] Speaker 03:
Well, two questions.

[00:06:25] Speaker 03:
One is... I don't think that's all it relies on.

[00:06:27] Speaker 02:
I don't think that's all they're relying on.

[00:06:30] Speaker 03:
Well, no, they certainly rely on the fact that the issues we point out with the references don't show failure happens all the time.

[00:06:38] Speaker 03:
That there's a possibility that they could succeed or that in fact what we offer as evidence to show non-enablement could be rebutted with only routine skill that could be fixed.

[00:06:48] Speaker 03:
But besides that, but putting aside the point that whether or not they say it could be fixed, the record is clear that whatever the skill in the art was or may have been,

[00:06:57] Speaker 03:
The documentary evidence, which no one could really contradict, is that no one could achieve this result, the clean result, using rolled rim and mold, and then using whatever the out-tail company was using until after 2016, 2017.

[00:07:09] Speaker 01:
What about the Thorne textbook?

[00:07:11] Speaker 01:
The Thorne textbook talks about rim rolling, doesn't it?

[00:07:14] Speaker 03:
Your Honor, Throne talks about rolling rims of cups, which it slows in the patents, and that was the prior art, and it doesn't help them at all.

[00:07:21] Speaker 01:
It's just more of what was the problem that led up to the reason for the plane invention and why its success was so vast, because it before... It's the basic evidence of taking, I don't know, some terminal edge and rolling it underneath so that you don't have this sharp edge sticking out.

[00:07:38] Speaker 03:
Your Honor, for a circular article, that was possible because of the screw method that they used, which required it to be distant angle.

[00:07:45] Speaker 03:
It had to be a circular object because as it would be screwed up, it would impact the edges against these walls and be rolled.

[00:07:52] Speaker 03:
That can't happen with a rectangular article.

[00:07:56] Speaker 04:
Didn't they also provide some real-world examples, though, to counteract some of these arguments that you're making right now?

[00:08:03] Speaker 03:
And Your Honor, what they are calling real-world examples that have a lot of legal issues with them, namely they don't tie the method that made those articles to anything in these disclosures.

[00:08:12] Speaker 03:
And to the extent they do, these real-world articles were not shown to be an embodiment of any of the particular claims at all.

[00:08:20] Speaker 03:
They just say, look, these articles exist.

[00:08:22] Speaker 03:
But as this Court has held,

[00:08:26] Speaker 03:
In prior case all the fact that it was made does not is not anything is not probable on the enablement is not probative on the enablement issue.

[00:08:34] Speaker 03:
But your honor also say that these articles all existed post filing date.

[00:08:38] Speaker 03:
They don't have a single article that existed prior to the founding.

[00:08:41] Speaker 03:
I mean, again, I would go back to in the Raytheon case.

[00:08:44] Speaker 03:
There, at least, the expert tried to simulate the imagined nib engine.

[00:08:47] Speaker 03:
Here, Mr. May, despite having all these textbooks, cherry-picked selections, we saw nothing to show that these references could actually, using those textbooks, could actually make an article.

[00:09:00] Speaker 01:
I don't think that's required, though, by our law.

[00:09:02] Speaker 01:
You don't have to have a physical embodiment of the prior art.

[00:09:10] Speaker 03:
It is true that it is one of the wants factors, the existence of working examples, but even that wasn't shown.

[00:09:18] Speaker 03:
So the fact that maybe a physical article wasn't shown, a working article did not exist prior to the filing date.

[00:09:25] Speaker 03:
They don't have any evidence that even what was in existence then was

[00:09:28] Speaker 03:
could make something according to those disclosures.

[00:09:31] Speaker 03:
And I'd say, Your Honor, too, you asked about the physical articles.

[00:09:35] Speaker 03:
With respect to the long reference, we don't even know what tooling or what methodology that reference even discloses.

[00:09:41] Speaker 03:
And the reason for that is because their other fact witness, Mr. Norton, testified that that was kept as a secret by Aalto, the assignee.

[00:09:49] Speaker 04:
So you have a lot of time on your argument talking about enablement.

[00:09:53] Speaker 04:
Can you just sum up your

[00:09:56] Speaker 04:
argument with respect to anticipation.

[00:09:58] Speaker 04:
I feel like you're agreeing to many aspects, but then maybe the dispute is very limited, so can you turn to that?

[00:10:04] Speaker 03:
So, Your Honor, on anticipation, there's two arguments for the two different references that are involved, the Meadows reference and Cortelli.

[00:10:10] Speaker 03:
As to Meadows, there's nothing but speculation to support what this embodiment that they say could be made out of thermoplastic.

[00:10:16] Speaker 03:
There's nothing to that point.

[00:10:17] Speaker 01:
Well, the reference talks about thermoplastic material, doesn't it?

[00:10:20] Speaker 03:
The reference says that the blank, the starter material, can be thermoplastic, but there's nothing in that reference, no figure in that reference, and not even the reference itself, which says it discloses the concept in terms of paper and paper forming.

[00:10:34] Speaker 03:
There's nothing in that reference that will show you a final form that is made out of thermoplastic.

[00:10:40] Speaker 03:
And the only way one gets there is through speculation.

[00:10:43] Speaker 03:
So in that speculation can't suffice as

[00:10:47] Speaker 03:
as substantial evidence and more so this court.

[00:10:50] Speaker 01:
There's a lot of overlapping rejections here or in validity grounds.

[00:10:54] Speaker 01:
Is it correct that if we hypothetically affirm the Metters 102 and affirm the 103 Portelli and Long, that would cover all the claims?

[00:11:10] Speaker 03:
No, Your Honor.

[00:11:12] Speaker 01:
Metters 102, Portelli, Long 103.

[00:11:15] Speaker 03:
That would cover everything.

[00:11:17] Speaker 01:
But we wouldn't need to then address Portelli 102, Portelli 11103.

[00:11:23] Speaker 01:
That's correct, Your Honor.

[00:11:24] Speaker 01:
I don't know, any other ground that exists in this case.

[00:11:27] Speaker 03:
That is correct, Your Honor, if that wasn't a hypothetical yes.

[00:11:29] Speaker 03:
And then Your Honor asked about the anticipation vis-a-vis Portelli.

[00:11:35] Speaker 03:
What we would say here is that to the extent that the Portelli anticipation theory was allowed to be let in,

[00:11:40] Speaker 03:
in the 916 and 918 IPRs because it was excluded from the 919 as being an improper new argument.

[00:11:48] Speaker 03:
Cortelli doesn't anticipate because it has defects within it, although they could be fixed by routine skill.

[00:11:54] Speaker 03:
A defective reference as an Apple V-corp phonics, a defective reference cannot function as an anticipation.

[00:12:01] Speaker 03:
And more, we honor the anticipation argument that they rely on Kenan metal to suggest that you can once envisage

[00:12:08] Speaker 03:
these varied forms of the different environments in Portelli, I think it's akin to a picking and choosing argument.

[00:12:17] Speaker 03:
That would be our best argument, as I believe would be for the anticipation on Portelli, assuming Portelli is found enabled at all, and matters as well.

[00:12:26] Speaker 03:
I will jump, if I may, to the obviousness issue.

[00:12:29] Speaker 03:
And here, I think, again, the same evidence that we are showing to suggest a lack of enablement also shows a lack of a reasonable expectation of success with respect to modification of the Portelli reference or Portelli in view of long.

[00:12:43] Speaker 03:
However, we did not argue lack of expectation of success for Portelli and Long, but for the same reasons that there was defects with respect to Portelli and the fact that Long calls out the Portelli reference and alludes to that it may often result in failures and that stubble-stage thermoforming process was slow, we think these distinctions, these discrediting comments in the Long reference are more than sufficient to meet this course.

[00:13:09] Speaker 02:
So why wouldn't a combination of Long and Portelli solve that problem?

[00:13:13] Speaker 03:
Because, Your Honor, the principle of operation of the long reference was to not do what Portelli proposed.

[00:13:20] Speaker 03:
It stated that the double-stage thermoforming process in the Australian counterpart for Portelli, it's the Portelli reference, there's no dispute there, they said it was slow.

[00:13:29] Speaker 03:
They also said that it often results in puckers and distortions.

[00:13:32] Speaker 03:
These are teachings to a person of skill and the art to avoid failure.

[00:13:36] Speaker 03:
That's tantamount to a motivation not to combine.

[00:13:39] Speaker 02:
And the fact that... I don't think you answered my question.

[00:13:43] Speaker 02:
If in fact there was a problem with the Portelli reference, why doesn't combining long solve the problem?

[00:13:51] Speaker 03:
Because the defects in Portelli are not solved by long.

[00:13:56] Speaker 03:
In other words, to solve Portelli's defects, at least what Petitioner is arguing, is that someone could fix up the particular methodologies that Portelli uses.

[00:14:03] Speaker 03:
Long doesn't use those methodologies, so there's nothing that Long teaches, assuming Long even teaches a methodology that could solve any of the problems with Portelli.

[00:14:10] Speaker 01:
But what is actually being borrowed from Long in the combination?

[00:14:13] Speaker 01:
Isn't it just the rim shape that Long designed?

[00:14:18] Speaker 03:
Your Honor, if you read these petitions, that's a very good question.

[00:14:21] Speaker 03:
They basically say Portelli meets all these claims, Long meets all these claims, therefore it's obvious to combine the two.

[00:14:26] Speaker 03:
I mean, I don't know, to me it seemed like a catch-all argument, the petition, but we addressed it.

[00:14:32] Speaker 03:
Your Honor, they do, in their petition, cite two different rim extensions from Portale, from Long or Portale, and they combine the two together.

[00:14:40] Speaker 03:
But again, that's akin to basically using the references as pieces of a jigsaw puzzle to kind of meet the claim.

[00:14:47] Speaker 03:
If you didn't have the claims as a roadmap, you have no idea to do that.

[00:14:50] Speaker 03:
And again,

[00:14:52] Speaker 03:
when we look at the Inrei-Holksma case.

[00:14:54] Speaker 01:
Isn't that like a substitution interchangeability theory?

[00:14:58] Speaker 03:
I don't believe so because that's assuming that when we look at the references in full, a person with skill in the R reading the long reference would not find the desire to combine anything with Portelli because they're already concerned that it results in failures.

[00:15:18] Speaker 03:
You're not going to get that.

[00:15:19] Speaker 03:
In other words, the smooth periphery, which is what everyone wanted, Long is saying you can't get that with Portelli.

[00:15:23] Speaker 03:
So the person with skill in the R would not look to

[00:15:25] Speaker 03:
a failure mode to combine with Portelli.

[00:15:28] Speaker 03:
And again, like I said, WOM does a completely different process.

[00:15:32] Speaker 03:
And under Hoeksema, the method of fabrication is part of the, you know, as a whole consideration under the section.

[00:15:39] Speaker 01:
Whether a reference teaches a way or is compatible with another reference, that's a question of fact, right?

[00:15:46] Speaker 03:
Your Honor, it would be a question of fact, correct.

[00:15:48] Speaker 03:
And I think in this case, the evidence in the record, which I don't believe was really seriously handled by the USPTO,

[00:15:55] Speaker 03:
All they say is that we disagree, but the point is the principles of operation are clearly distinguishable.

[00:16:01] Speaker 03:
In fact, no one disagrees that Long was distinguishing Portelli at a minimum, assuming they call it a preference.

[00:16:07] Speaker 03:
Long distinguished Portelli, and therefore, that distinguishing characteristic of the Daiichi-Sankyo precedent, that's a distinguishing characteristic that would militate against the motivation to combine, and we've argued that.

[00:16:19] Speaker 02:
Okay, I think we're out of time.

[00:16:21] Speaker 02:
We'll give you two minutes.

[00:16:22] Speaker 03:
Thank you, Your Honor.

[00:16:28] Speaker 02:
Okay, Mr. Fisher.

[00:16:38] Speaker 00:
Thank you, Your Honor, and may it please the Court.

[00:16:41] Speaker 00:
The standard of review on appeal is substantial evidence.

[00:16:45] Speaker 00:
That standard is met if a reasonable fact finder could

[00:16:49] Speaker 00:
not necessarily would, but could have reached the same conclusion when looking at the record as a whole.

[00:16:56] Speaker 00:
It does not mean what CM asks this court to do, which is to go through the party's competing evidence and reweigh all of it.

[00:17:05] Speaker 00:
CM has, in fact, failed to point to any issue on which there is actually a lack of substantial evidence.

[00:17:13] Speaker 00:
Instead, they're trying to retry the merits of nearly every issue in the case.

[00:17:19] Speaker 00:
According to CM, the PTAB's weighing of the evidence was wrong with respect to every issue of, every finding of enablement of the prior ARC, every finding of anticipation, and every finding of obviousness, including the weight that the board gave to CM's alleged evidence of objective in addition of non-obviousness.

[00:17:43] Speaker 00:
In addition, all the claims in this case are directed to a plastic tray.

[00:17:48] Speaker 00:
They're not directed to the method of making the tray.

[00:17:51] Speaker 00:
Yet the bulk of CM's arguments are focused on the manufacturing method.

[00:17:56] Speaker 00:
For example, if you look at page 10 of the blue brief, CM talks about the speed of its manufacturing process and criticizes the, quote, slowness of the double-stage thermoforming process as disclosed in Cortelli.

[00:18:10] Speaker 00:
And I think we heard counsel also talk about how slow the thermoforming process of Cortelli would have been.

[00:18:17] Speaker 00:
But that's all beside the point, because the speed of commercial production is not an element of any claim in this case.

[00:18:24] Speaker 00:
Now, as we know, enablement was a key issue in the case, and CM argued that the methods of Cortellian law would be incapable of producing the trays disclosed in those references.

[00:18:37] Speaker 00:
For example, CM contended that a posita would not have been able to form a rolled rim on a non-circular argument.

[00:18:45] Speaker 00:
a non-circular article.

[00:18:48] Speaker 00:
TechReplex countered with substantial rebuttal evidence, and I believe the throne textbook was raised by Your Honor.

[00:18:55] Speaker 00:
And I would ask the Court to refer to Appendix 15111 and 15112, which contains a particularly pertinent passage of the throne reference.

[00:19:08] Speaker 00:
Throne states, quote, the classic example of rim treatment of thin gauge parts is the rolled rim.

[00:19:16] Speaker 00:
Throne goes on to say that although the method is a standard method for round parts, quote, rim rolling is used on occasion for oval elliptical

[00:19:26] Speaker 00:
or oblong parts with generous corner radii.

[00:19:30] Speaker 00:
An oblong part with corners is a rectangle, not a circle.

[00:19:33] Speaker 00:
So throwing by no means was limiting its discussion to circular articles or round objects.

[00:19:43] Speaker 00:
In fact, CM's own expert admitted that thermoforming is an extremely

[00:19:48] Speaker 00:
mature artists been around for over 70 years, and that was a finding that was adopted by the board.

[00:19:55] Speaker 00:
In addition to that, we provided photographs of examples of products made by the millions on a commercial scale

[00:20:04] Speaker 00:
using the same methods described in Portelli and Long that CM claimed couldn't possibly work.

[00:20:11] Speaker 00:
Not just that, we provided catalogs of off-the-shelf equipment with which a posita would have been well familiar and could have used to implement the processes described in Portelli and Long.

[00:20:24] Speaker 00:
And our expert, Mr. Glenn May, tied all of that evidence together with his declaration.

[00:20:30] Speaker 00:
Ultimately, the PTAB found Tecnaplex's evidence

[00:20:33] Speaker 00:
more persuasive than CM's evidence.

[00:20:37] Speaker 00:
So the issue here is not a lack of substantial evidence, it's that CM doesn't like and is dissatisfied with how the board weighed the evidence.

[00:20:46] Speaker 04:
Do you agree with my characterization and the question that I asked opposing counsel that the primary argument they seem to be making is a lack of enablement on the three key prior art references, and I would define it as the three that we were talking about with opposing counsel.

[00:21:01] Speaker 00:
Yes, that is their primary argument, Your Honor.

[00:21:03] Speaker 04:
And then in terms of the anticipation argument, do you agree that they really are focused on matters not being anticipatory in their opinion, because it doesn't disclose an article form from a thermoplastic sheet?

[00:21:16] Speaker 00:
Yes, Your Honor.

[00:21:16] Speaker 00:
That is their key argument.

[00:21:18] Speaker 04:
And they're not disputing any other aspects in terms of matters disclosure?

[00:21:24] Speaker 04:
Is that accurate on the anticipation part?

[00:21:26] Speaker 00:
I believe that is true, Your Honor.

[00:21:31] Speaker 00:
CM did raise one legal issue, which is the construction of the phrase, quote, either of VSP and MAP or MAP sealing technologies, which appears in claim one of the 624 patent.

[00:21:45] Speaker 00:
CM's argument there boils down to the assertion that either means both, which is just incorrect, and they have no authority for that argument.

[00:21:55] Speaker 00:
Does the court have any questions about the issues that I've raised thus far?

[00:22:02] Speaker 00:
I would like to make one point about the Williams email that Council mentioned, and it's the fact that Williams himself was ambivalent, and if you actually look at the second page of that email, you can see

[00:22:23] Speaker 00:
where he says that the process is not actually impossible.

[00:22:29] Speaker 00:
And this appears at appendix 22119 where Williams states, quote, we also know from past tests that this does not mean that it is impossible, but it means that we need to do more testing to find this out.

[00:22:43] Speaker 00:
This also means that it is not suited to go into a fixed time schedule where you want to have your production up and running in six months.

[00:22:50] Speaker 00:
So Williams, again,

[00:22:52] Speaker 00:
didn't believe that this particular specific tray edge was impossible.

[00:22:58] Speaker 00:
He was just saying, well, you want it production ready.

[00:23:02] Speaker 00:
It's not impossible.

[00:23:03] Speaker 00:
We can do it.

[00:23:04] Speaker 00:
But again, the speed and ability to commercially produce these trays is not an element of any claim in this case.

[00:23:18] Speaker 02:
Anything further?

[00:23:19] Speaker 00:
No, that's all I have, Your Honor.

[00:23:22] Speaker 00:
Thank you.

[00:23:22] Speaker 00:
Thank you.

[00:23:24] Speaker 02:
Thank you.

[00:23:26] Speaker 02:
Mr. Farco, you have a couple minutes.

[00:23:28] Speaker 03:
Thank you, Your Honor.

[00:23:29] Speaker 03:
I want to start by saying that under the standard review, and as this court also held in MacGuffin, that the agency's fact-finding cannot be immunized because you dub something of credibility determination, especially when there's documents in the record that contradict the witness's story.

[00:23:46] Speaker 03:
So Mr. May's testimony notwithstanding, there's plenty of documents in the record that were never really even handled by the board in finding substantial evidence that detracts, if not

[00:23:55] Speaker 03:
show that his story is not credible.

[00:23:57] Speaker 03:
But, Your Honors, I will say that let's look at the obviousness issue since, as Judge Chen pointed out before, is important because the foretelling along combination is applicable to all the claims.

[00:24:10] Speaker 03:
Your Honors, the testimony on which the board found there to be substantial.

[00:24:14] Speaker 02:
It's not applicable to all the claims.

[00:24:15] Speaker 03:
or accept the claim 8 of the 6-8-0 patent.

[00:24:18] Speaker 03:
But otherwise, all other challenge claims were found to be unpatible over the Portellian long combination.

[00:24:24] Speaker 03:
The obviousness of findings of the PTAB and by USPTO

[00:24:31] Speaker 03:
were based on Mr. May's testimony, which excluded consideration of the objective condition on obviousness.

[00:24:37] Speaker 03:
Under the in touch text case, that testimony should be of courted no weight on review because it's conclusory.

[00:24:44] Speaker 03:
It admits the...

[00:24:48] Speaker 02:
The board was relying on the, for an ultimate conclusion about obviousness, but rather the prima facie case.

[00:24:56] Speaker 03:
But your honor, the point is when in the, but those opinions that they cite to for Mr. May are on giving the opinion that they, that in combination these references render the claims obvious.

[00:25:05] Speaker 03:
It's an ultimate conclusion.

[00:25:07] Speaker 03:
Never consider the objective indicia.

[00:25:09] Speaker 03:
And again, it is.

[00:25:10] Speaker 02:
But I don't think the board was relying on him for the ultimate conclusion.

[00:25:15] Speaker 03:
Well, Your Honor, still, the opinion that he gives on the, well, his opinions were that they were obvious.

[00:25:20] Speaker 03:
He concluded they were.

[00:25:21] Speaker 03:
And nevertheless, he never considered the objective indicia.

[00:25:25] Speaker 03:
And with respect to the objective indicia, I just want to add that in this instance, the USPTO never properly analyzed the objective indicia, which were not really disputed under proper legal lenses, coming up with many different reasons why they should not be afforded any way, or in some cases were insufficient.

[00:25:43] Speaker 03:
It's just not really

[00:25:43] Speaker 04:
But you agree, right, that the PTAB did consider the secondary considerations or objective indicia.

[00:25:52] Speaker 04:
You just don't agree with the weight that was given to them.

[00:25:54] Speaker 03:
No, Your Honor, I don't think they truly considered them because when they first they said that the absence of they say there's an absence of industry the long felt need when we that was in our brief we cited to section 2B of the patent owner response site they came out and said there was no long felt need and then furthermore they said that there wasn't when they when they analyze each reference with each of the objective indicia

[00:26:21] Speaker 03:
They just called it a question, was the commercial success exponential enough?

[00:26:25] Speaker 03:
Was the industry praise sufficient?

[00:26:27] Speaker 04:
But in your view, it sounds like you only would agree that the board considered something if the board agrees with your take.

[00:26:34] Speaker 03:
No, that's not true, Your Honor.

[00:26:35] Speaker 03:
I would not mind if the board came out and gave a reason why was the industry award in three emails that we received with industry praise insufficient?

[00:26:46] Speaker 03:
You just don't know from the record.

[00:26:48] Speaker 03:
You don't know why, why was the evidence of copying not sufficient when we proved under the Medtronic jurisprudence that the petitioner had access and the products were substantially similar.

[00:26:58] Speaker 02:
Okay, I think we're out of time.

[00:27:01] Speaker 02:
Thank you.

[00:27:01] Speaker 02:
Thank you, Your Honor.