[00:00:00] Speaker 03:
Our next case for argument is 23-1515, Edward Life Sciences versus Cardio Val.

[00:00:07] Speaker 03:
All right, Mr. Stowell, please proceed.

[00:00:10] Speaker 01:
Thank you, Your Honors, and good morning.

[00:00:12] Speaker 01:
Josh Stowell, on behalf of- Sorry, I pronounced your name wrong.

[00:00:16] Speaker 03:
Sorry about that.

[00:00:17] Speaker 01:
No problem.

[00:00:18] Speaker 01:
Josh Stowell, on behalf of the Attorney General of Flight Sciences.

[00:00:22] Speaker 01:
The IPR below involved the rare situation where CardioVal filed a non-contingent motion to amend.

[00:00:28] Speaker 01:
And what that means is that CardioVal agreed that the initial claims were invalid, and those claims were canceled.

[00:00:35] Speaker 01:
In its place, CardioValve proposed substitute claim 11.

[00:00:40] Speaker 01:
What's interesting about claim 11 is that the new limitations that were added did not have textual support in the 385 patent.

[00:00:48] Speaker 01:
So, for example, the term supports portion as a standalone term does not appear in the patent.

[00:00:54] Speaker 01:
The advancing limitation that was added to the claims does not appear in the patent.

[00:00:58] Speaker 04:
Yes, there are three independent basis for remand in this case.

[00:01:16] Speaker 01:
First,

[00:01:17] Speaker 01:
The board misconstrued the term support portion to require a unitary structure.

[00:01:23] Speaker 01:
That construction was not supported by any evidence.

[00:01:26] Speaker 01:
In fact, the board did not identify any intrinsic or extrinsic evidence to support that construction.

[00:01:33] Speaker 01:
The result of that construction is that the board found that the male element was disqualified from being a support portion and then didn't do the analysis as to whether

[00:01:42] Speaker 01:
it would meet the limitations of supporting and whether it would meet the limitations of apportionment.

[00:01:46] Speaker 01:
So that's one.

[00:01:47] Speaker 01:
The second issue that the board found is that the board concluded that the caller on Goldfarb 267 is not a support apportionment.

[00:01:56] Speaker 01:
In order to reach that conclusion, the board reached its own facts.

[00:01:59] Speaker 01:
It came up with a theory that the caller does not exert a mechanical effect, to use the board's language.

[00:02:04] Speaker 01:
There was no support in the record for this mechanical effect argument.

[00:02:09] Speaker 01:
It was something that the board created, and it's contradicted by the expressed teachings of Wolfart 267.

[00:02:15] Speaker 01:
So that's the second item that would be cause-free.

[00:02:18] Speaker 01:
And then the third is the board's construction of the advancing limitation.

[00:02:23] Speaker 01:
The board imported the phrase, any part of, into the claim language inappropriately.

[00:02:32] Speaker 01:
Not only did the board not explain the basis of doing that, would point to any intrinsic or extrinsic evidence to support that construction.

[00:02:39] Speaker 01:
But again, it's contrary to the teachings of the references itself.

[00:02:42] Speaker 04:
So if this is- My understanding was that the opposing party indicated that we only need to have a decision on the advancing construction.

[00:02:51] Speaker 01:
Yeah, and that's not correct.

[00:02:53] Speaker 01:
The advancing limitation only impacts, or the board's analysis of that, only impacts whether the male element is the support portion.

[00:03:02] Speaker 01:
It doesn't impact the collar dispute, which wasn't referred to at all.

[00:03:07] Speaker 03:
The collar, are you talking about the surround?

[00:03:09] Speaker 03:
Is that the limitation that you're talking about, surround?

[00:03:12] Speaker 01:
No, there are.

[00:03:14] Speaker 01:
Yeah, Edwards identified two elements in the Goldfarb 267 reference that meet the support portion claim limitation.

[00:03:26] Speaker 01:
One was the male element of the fixation price.

[00:03:29] Speaker 01:
The other was the collar of the fixation price.

[00:03:31] Speaker 01:
So when I refer to the collar, I'm referring to the collar of the fixation price.

[00:03:36] Speaker 01:
So that Pollard argument is unimpacted by the board's analysis of the advancing limitation.

[00:03:42] Speaker 01:
Pollard's not mentioned in that section.

[00:03:45] Speaker 01:
Additionally, to the extent the court agrees that the board misconstrued advancing, the case would need to be remanded for factual findings under that construction.

[00:03:54] Speaker 01:
This male element, whether it's advanced out

[00:03:57] Speaker 01:
before or after, it presumes that the board construed that construction correctly.

[00:04:03] Speaker 01:
If the board determines that advancing was misconstrued, we would need further factual findings.

[00:04:09] Speaker 04:
My understanding is the board, at least in part, indicated that there was a failure to meet the burden of proof with respect to what was presented on the advancing limitation.

[00:04:19] Speaker 04:
So can you tell me what evidence Edwards put forth with regards to that limitation?

[00:04:23] Speaker 01:
Correct.

[00:04:25] Speaker 01:
Well, the board specified that it had concerns that the identification of the length of the distal element was speculative.

[00:04:33] Speaker 01:
That's the board's statement at appendix page 57.

[00:04:37] Speaker 01:
That only applies to the anticipation argument Edwards made regarding the male element.

[00:04:43] Speaker 01:
Edwards had relied on some figures.

[00:04:45] Speaker 01:
And in those figures, it relied not only on the figures themselves, but expert testimony and the description in the 267 patent regarding how the device would collapse when it was put into its final configuration and what the relative orientation of the parts would be at that specific point in time.

[00:05:03] Speaker 01:
So that's the anticipation.

[00:05:05] Speaker 01:
Edwards also made an obvious mis-argument.

[00:05:06] Speaker 01:
It would have been obvious to modify the lengths of the elements so that the elements

[00:05:11] Speaker 01:
the clip-ella arms came out of the tube before the support portion.

[00:05:16] Speaker 01:
That wasn't addressed by the board at all, and it's implicated.

[00:05:19] Speaker 03:
I'm having a little trouble understanding that argument, because if the board got the advancing construction correct, which just means any portion has to get out first, I don't see why

[00:05:32] Speaker 03:
why it would be obvious to a skilled artisan to modify the ends of the arms so that they got out for any portion of the device.

[00:05:42] Speaker 03:
I don't care how small those arms are, they could be tiny little arms, there's still some other portions of the support structures that we get out first.

[00:05:50] Speaker 03:
So no matter how strong, so I don't

[00:05:51] Speaker 03:
I'm not understanding, I'm not following your argument.

[00:05:54] Speaker 03:
It seems to me that your complaints about the board's obviousness and conclusion hinge on my accepting your claim construction as a predicate.

[00:06:02] Speaker 03:
I don't see how you have an independent argument that you presented on obviousness that differs from your argument on the advancing construction.

[00:06:12] Speaker 01:
There is an independent argument in that if we've relied on the male element and that it would come out of the... But that argument relies on the clink construction.

[00:06:22] Speaker 01:
Not on the advancing clink construction.

[00:06:27] Speaker 00:
So I don't understand either.

[00:06:29] Speaker 00:
I think you're asking for too much.

[00:06:31] Speaker 00:
I don't understand why you're not

[00:06:34] Speaker 00:
just focusing on the fact that if the claim construction was wrong and that the male member can be the support portion, then the references show that the arms come out before that support portion, rather than even if it's a single unitary member, as the board found, it all comes out.

[00:06:56] Speaker 00:
Because I don't see how it does.

[00:06:59] Speaker 01:
Well, to your point, we are focused.

[00:07:01] Speaker 00:
You're confusing us by talking about something in that it doesn't seem really as a very strong argument.

[00:07:10] Speaker 00:
And your stronger argument is the claim construction argument that the board said support portion

[00:07:17] Speaker 00:
has to be one unitary piece and that a portion of a unitary piece can't be a support portion.

[00:07:25] Speaker 00:
I mean, without any explanation really at all in the specification where that comes from.

[00:07:34] Speaker 01:
I agree with Your Honor.

[00:07:35] Speaker 01:
That is the basis to remand.

[00:07:38] Speaker 01:
The construction of support portion was unsupported.

[00:07:41] Speaker 03:
Let me see if I can summarize.

[00:07:43] Speaker 03:
So in order for you to prevail on this, the Tampy Medication, you have to win at least one of these two arguments.

[00:07:52] Speaker 03:
Either, number one, we agree with you that the board got the construction of advancing raw, and then you would want only advancing the dish.

[00:08:00] Speaker 03:
Or, number two, we'd have to agree with you that the male portion of 19 is the support portion in the claims, and then you could get the advancing

[00:08:11] Speaker 03:
You went on the advanced limitation because the male portion, it's possible if the arms were shortened in an obvious way, then the male portion might not get out before the shorter arms.

[00:08:22] Speaker 03:
Does that make sense?

[00:08:22] Speaker 01:
Correct.

[00:08:23] Speaker 01:
We've articulated two of the ways that we succeed.

[00:08:27] Speaker 03:
Well, yeah, you have to win one of those two.

[00:08:32] Speaker 03:
So which one do you think is your better one?

[00:08:34] Speaker 01:
Well, certainly the construction of support portion is not supported anywhere.

[00:08:38] Speaker 03:
Well, what if I don't think there's a construction of support portion?

[00:08:41] Speaker 03:
What if I just construed this as the board having applied the word support to Bullmark and concluded that this is a substantial evidence question?

[00:08:52] Speaker 01:
Well, the board never

[00:08:56] Speaker 01:
analyzed whether the male element performs a supportive function.

[00:09:00] Speaker 01:
What the board did is it said the male element cannot be a support portion.

[00:09:06] Speaker 01:
Instead, we find that the coupling member performs supportive functions.

[00:09:11] Speaker 01:
And so the board never went through the exercise of trying to determine whether the male element supports.

[00:09:17] Speaker 01:
And in fact, I think if you read through the language, the board says all of the portions of the coupling members support.

[00:09:25] Speaker 01:
So implicitly, there's an agreement that the support portion or the male element must support.

[00:09:30] Speaker 01:
And we cited to Goldfarb 267, which explains that the male element does support.

[00:09:35] Speaker 01:
That's the very purpose of that male element.

[00:09:37] Speaker 01:
It's part of this mating surface that absorbs compressive forces.

[00:09:42] Speaker 03:
well so here's your problem i mean the board on page 42 says uh petitioner points to no portion of the male element of the coupling number 19 performing a support function that's not shared by all the other elements of coupling number 19 so you're you want to

[00:10:00] Speaker 03:
The board made a fact finding that 19 is the support portion.

[00:10:05] Speaker 03:
And what the board found is you didn't distinguish any supporting things that are performed by only the male portion, that aren't performed by all of Vader 19.

[00:10:15] Speaker 03:
And so that certainly matters to what is the support portion.

[00:10:20] Speaker 03:
They think it's all of 19.

[00:10:21] Speaker 03:
You want it to be just the male portion.

[00:10:23] Speaker 03:
It matters because then you have to think about advancing.

[00:10:26] Speaker 03:
Is any portion of 19 advanced?

[00:10:28] Speaker 03:
If all of 19 is a support portion, some portion of it has advanced.

[00:10:33] Speaker 03:
And that's all fact-finding.

[00:10:35] Speaker 01:
Well, in order to reach the conclusion that the entire coupling members of the support portion, the court had to disregard that the male element could be a support portion, right?

[00:10:45] Speaker 01:
The board let to the conclusion that the male element can't be a support portion because it's part of a larger structure.

[00:10:51] Speaker 03:
That was the public construction.

[00:10:53] Speaker 03:
I didn't see what I was saying.

[00:10:54] Speaker 03:
It can't be a support portion.

[00:10:55] Speaker 03:
I saw what I was saying.

[00:10:56] Speaker 03:
It is a portion of the overall component which provides support.

[00:11:02] Speaker 03:
And I saw them saying that there's no evidence that it presented some sort of extra or different support than is otherwise provided by the whole aspect of Figure 19.

[00:11:14] Speaker 03:
And that's all fact-finding.

[00:11:16] Speaker 03:
There's nothing about that, sounds like a legal question to me.

[00:11:18] Speaker 03:
You want to frame this as a claim construction, but nothing in the dialogue that we've just had sounds to me vaguely like a claim construction.

[00:11:26] Speaker 01:
Well, but here's the problem.

[00:11:27] Speaker 01:
The board hasn't explained why the mail element can't be a support tool.

[00:11:31] Speaker 00:
Let me ask you this hypothetically.

[00:11:33] Speaker 00:
Do you think if the mail element was a support portion separately from the rest of that support tool, or the rest of that whatever device is, also had support functions that that would

[00:11:52] Speaker 00:
meet this claim element of advancing the end of the clip arms out of the liberty tube before advancing the support portion?

[00:12:00] Speaker 00:
The male element would meet that limitation.

[00:12:03] Speaker 03:
No, you can't say it would meet the limitation.

[00:12:05] Speaker 03:
You can say it might be obvious for a skilled artisan to make the arms smaller than what's actually disclosed in Gulf Warp.

[00:12:12] Speaker 03:
And if a skilled artisan did that, then the male element would meet it.

[00:12:16] Speaker 03:
But you can't argue that Gulf Warp discloses advancing

[00:12:20] Speaker 03:
the small arm length, the end of the arms, prior to even the male portion.

[00:12:25] Speaker 03:
You can only get there with modifications based on obviousness.

[00:12:28] Speaker 03:
So I really think that you just answered Judge Hughes' question inaccurately.

[00:12:33] Speaker 03:
Am I correct?

[00:12:34] Speaker 01:
No, we have presented evidence.

[00:12:36] Speaker 00:
It wasn't really the question I was asking either.

[00:12:38] Speaker 00:
Because the question I'm asking is, I think this advancing the end of the clip arms out before the support portion, if I understand you, your argument is there can be multiple support portions.

[00:12:51] Speaker 00:
And that the male member is a support portion, but there are other support, could be other support portions.

[00:12:56] Speaker 00:
If those other elements are also considered support portions and the clip arms don't come out before those other elements, then why does it show that the clip arms are out before the support portion?

[00:13:11] Speaker 00:
Is it just because there's one support portion left that they have all come out before?

[00:13:17] Speaker 01:
Correct.

[00:13:17] Speaker 01:
There is a support portion that meets the claim limitation that comes out after the clip arms.

[00:13:23] Speaker 01:
There may be others.

[00:13:24] Speaker 00:
And so that's your claim construction argument that support portion, because it's not defined here, could refer to one or more support portions.

[00:13:33] Speaker 00:
And if it was properly construed to have multiple support portions, then

[00:13:41] Speaker 00:
the clip arms may not come out before the first couple support portions, but they do come out before the last male support portion.

[00:13:49] Speaker 00:
Is that what you're saying?

[00:13:50] Speaker 01:
That is not the way we've articulated.

[00:13:53] Speaker 01:
Our articulation is that the male element is a support portion under the plans on the male element.

[00:13:58] Speaker 00:
You're still not answering my question is the problem.

[00:14:00] Speaker 00:
I mean, I think I gave you the best argument you have.

[00:14:03] Speaker 00:
And if that's not your argument, then I don't understand what your argument is.

[00:14:08] Speaker 00:
If there are multiple support portions,

[00:14:11] Speaker 00:
And so I don't know what to call the ones besides the mail number.

[00:14:14] Speaker 00:
Let's just call them the other ones.

[00:14:17] Speaker 00:
It seems undisputed that those portions come out before the clip arms are fully out, right?

[00:14:24] Speaker 00:
Or let's just say, hypothetically, they do, so we don't have to get into that.

[00:14:27] Speaker 00:
If those portions come out before the clip arms are out, then how is the end of the first and second clip arms out before advancing the support portion out?

[00:14:41] Speaker 00:
because there are support portions out.

[00:14:44] Speaker 00:
I thought your argument was as long as they came out before any support portion and that the male member was the last support portion.

[00:14:53] Speaker 00:
If that's not the argument, then you're going to have to explain to me

[00:14:57] Speaker 00:
what your argument is, again, with 12 seconds.

[00:15:00] Speaker 01:
Well, again, the support portion isn't a defined term in the past.

[00:15:04] Speaker 01:
We're applying the Plaint and Ordinary Union.

[00:15:06] Speaker 01:
It is a portion that supports.

[00:15:08] Speaker 01:
Evidence was submitted that the male element does provide unique support functions that are not shared by the rest of the coupling member.

[00:15:16] Speaker 01:
It's like saying, if I hang from the monkey bars, my shoulder is not doing the same support function as my hand.

[00:15:22] Speaker 01:
Here, the male element is the hand.

[00:15:25] Speaker 01:
It is performing a unique support function, and therefore it meets the claim limitation, regardless of whether there are other support portions that there very well may be, I agree with you.

[00:15:34] Speaker 03:
Okay, Mr. Stoll, you've used all your time, all your rebuttal time, and you've gone over.

[00:15:38] Speaker 03:
Let's hear from Ms.

[00:15:38] Speaker 03:
Gordon and I'll restore some of the rebuttal time at the end.

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

[00:15:52] Speaker 00:
I'm impatient.

[00:15:58] Speaker 00:
Can we just pick up where he left off?

[00:15:59] Speaker 00:
Because I think he finally got to something that made sense to me, which was if we accepted the board misconstrued support portion.

[00:16:08] Speaker 00:
And let's just start with that.

[00:16:09] Speaker 00:
I know you don't agree, but let's just say that support portion doesn't have to be a singular support portion, even if it's all kind of connected to each other, that there can be multiple support portions.

[00:16:23] Speaker 00:
that male member performs a unique support function because of the way it's designed and placed on this.

[00:16:30] Speaker 00:
Why wouldn't that at least make obvious the advancing the ends out before the support portion?

[00:16:38] Speaker 02:
Well, I think, Your Honor, the first issue is that there is no obviousness argument that the petitioner has made here with regard to obviousness and support portion.

[00:16:48] Speaker 02:
Their obviousness argument is with regard to advancing.

[00:16:51] Speaker 02:
Support portion has been only argued as what Wolfhard disclosed.

[00:16:57] Speaker 00:
OK, that wasn't what I wanted to ask.

[00:16:58] Speaker 00:
So just assume that I don't care about what you're saying.

[00:17:02] Speaker 00:
On that point no what I'm trying to get at is if there are multiple support or if there is support portion Because it's not defined in your patent can mean one or more support portions and that you can construe the male member as a support portion forming a unique function Then why doesn't that?

[00:17:25] Speaker 00:
And I don't want to get tied up in anticipation or obvious that why doesn't that show the advancing?

[00:17:31] Speaker 00:
limitation because let's just assume again for purpose of the argument that the clip arms come out fully before the male member and that's a support portion.

[00:17:45] Speaker 00:
So in that scenario the clip arms are out before a support portion even though they might not be out before other support portions.

[00:17:56] Speaker 02:
If you're asking me if we assume that the clip arms come out before male element of coupling number 19, and we assume that coupling male element of coupling number 19 can meet any definition of support portion under the patent, then yes.

[00:18:18] Speaker 02:
but I don't think there's facts to support that below.

[00:18:22] Speaker 02:
I think that what has happened here is that the board made fact findings about what the male element of coupling portion 19 is and what it is not.

[00:18:32] Speaker 00:
And those are... Do you not think that the board implicitly

[00:18:37] Speaker 00:
suggest construed support portion to mean that you couldn't have multiple support portions on a single unitary object?

[00:18:45] Speaker 02:
What I think the board did was looked at GoFARB and GoFARB Embodiment A, which is what was argued by the petitioner.

[00:18:51] Speaker 02:
What the board had to do was look at what the petitioner put forward as the support portion and made fact findings about what that showed.

[00:18:58] Speaker 02:
The petitioner did not put forward evidence that male element of 19A had any disclosure in it that it could be separable from the rest of what male coupling number 19.

[00:19:13] Speaker 02:
And in fact, the board found that coupling number 19 was an entire thing.

[00:19:18] Speaker 02:
That male element of coupling number 19 does not do any supporting alone apart from the rest of

[00:19:27] Speaker 02:
That is a fact finding that the board made I think on pages 40 and 42 that there is substantial that is supported by substantial evidence.

[00:19:39] Speaker 02:
Further the board found not only did that did the

[00:19:43] Speaker 02:
did a male element of support portion 19 not meet the supporting function because it doesn't do the supporting alone.

[00:19:54] Speaker 02:
It only does it in conjunction with the female element, the cylindrical portion, and the arms, 19A and B. It also found that the male element cannot be a support portion because it doesn't surround.

[00:20:06] Speaker 02:
OK, well, let's see.

[00:20:06] Speaker 02:
But here, you were doing so well until then.

[00:20:10] Speaker 03:
What about figure 25?

[00:20:12] Speaker 03:
and the fact that the board never addressed it.

[00:20:15] Speaker 03:
That's a real problem.

[00:20:16] Speaker 03:
So I have to get to surround.

[00:20:17] Speaker 03:
If you don't win on the first thing, trust me when I say you lose.

[00:20:21] Speaker 00:
I mean, the board's just wrong on surround.

[00:20:25] Speaker 00:
Figure 25 shows surround.

[00:20:27] Speaker 02:
Well, on surround, on figure 25 of surround,

[00:20:33] Speaker 03:
which the board didn't address.

[00:20:36] Speaker 03:
At a minimum, they didn't remain.

[00:20:38] Speaker 03:
They alleged it, and the board never mentioned it, and it shows no element completely around.

[00:20:43] Speaker 03:
It's not the usual, like all 19.

[00:20:48] Speaker 02:
Just two minor points on that.

[00:20:51] Speaker 02:
The final decision out cites part of

[00:20:54] Speaker 02:
The section on Figure 25 at page 26, that's Goldfarb 26, 45 through 50.

[00:21:00] Speaker 02:
That is the paragraph explaining Figure 25 in Goldfarb.

[00:21:04] Speaker 02:
That's in the final written decision.

[00:21:06] Speaker 02:
Figure 25 is a different embodiment than Figure 22 A and B, which is what has been argued by the petitioner.

[00:21:11] Speaker 03:
No, they also weren't in Figure 25.

[00:21:14] Speaker 02:
They argued that Figure 25 shows more complete surrounding, but it is the evidence that the board cited with regard to surround, which included looking at Figures 22A and 22B, which is the main argument of Goldfarb Embodiment A. And then it also looked at other disclosures in Goldfarb, also argued by Petitioner, and that was Figures 49 and Figures 16 as illustrative.

[00:21:41] Speaker 03:
okay so I mean you have no chance of prevailing at least with me on this argument maybe the other two judges but the board didn't address figure 25 the board has an obligation to do that I can't review fact findings that weren't made on a fact-finding body so but you don't need that argument do you because if you're right on support then we never even reach that argument correct if

[00:22:04] Speaker 02:
Male element of 19 is not separable from the remainder of coupling member 19, which I think is a fact finding and not a claim construction.

[00:22:12] Speaker 00:
Why does it have to be separable?

[00:22:14] Speaker 02:
Because that's what their argument is, is that male element of 19 is.

[00:22:18] Speaker 00:
What do you mean separable?

[00:22:20] Speaker 00:
Not physically separable, just an identifiable distinct portion.

[00:22:25] Speaker 02:
That it can be considered separable for purposes of a support portion.

[00:22:28] Speaker 02:
The case law that is.

[00:22:29] Speaker 00:
What does that mean?

[00:22:31] Speaker 00:
We know this is one unitary piece.

[00:22:33] Speaker 00:
They're not disputing that.

[00:22:35] Speaker 00:
Their argument is that different sections of this one unitary piece have different support portions functions.

[00:22:45] Speaker 00:
And the board seemed to not grapple with that by saying, well, it's all one piece, so it's one support portion.

[00:22:52] Speaker 00:
And therefore, the male element doesn't do anything separately.

[00:22:57] Speaker 00:
If that is incorrect.

[00:23:00] Speaker 00:
Because they said support portion, a unitary piece can't be considered as having separate support portions, that seems to me to be a claim construction issue.

[00:23:13] Speaker 02:
Well, the board's fact finding was that the splitting up of the support portion, as Edwards would like to have it be, was arbitrary and unduly restrictive based on the goal floor of disclosure at Apex 42.

[00:23:26] Speaker 02:
I think that's it.

[00:23:28] Speaker 03:
Go ahead.

[00:23:29] Speaker 02:
And that's a fact-finding supported by substantial evidence.

[00:23:35] Speaker 02:
It goes on to say that Goldfarb does not describe, for example, that the male element and the female element provide teachings that those are separable pieces.

[00:23:43] Speaker 02:
So Goldfarb doesn't explain why you... It goes further.

[00:23:48] Speaker 03:
Doesn't the word also say, as shame?

[00:23:50] Speaker 03:
that is created by the combination of the male and female element may provide support, but it's not male alone that does it.

[00:23:59] Speaker 03:
The board made very specific fact findings that that male portion has not been alleged to, or in fact, they did not find, that it on its own offers any support, only in combination with the rest of the unitary structure, or at least with the female portion of the S-curve.

[00:24:18] Speaker 02:
correct there is there is the fact that the fact findings are that the mail portion doesn't support.

[00:24:25] Speaker 04:
In a unitary way okay come to me I just turned to something slightly different but it's the same question I suppose.

[00:24:32] Speaker 04:
I want to know exactly which issues you believe you need to decide.

[00:24:36] Speaker 02:
So I think this is complicated.

[00:24:39] Speaker 02:
There are a lot of issues that have been briefed and a lot of issues put forward by Edwards.

[00:24:45] Speaker 02:
I think the court can affirm if it finds that the advancing construction is correct.

[00:24:50] Speaker 02:
There's no evidence that the board could credit Goldfarb, anticipates or renders obvious, even if the male portion of Collar 19 is a support portion.

[00:24:58] Speaker 02:
I think Edwards even agrees that even if caller 131 would not meet the advancing limitation under the board's construction, they admitted that at the oral argument before the board.

[00:25:11] Speaker 02:
Even if- Where is that?

[00:25:12] Speaker 03:
Because we just heard him, your closing counsel, say something to the contrary.

[00:25:18] Speaker 03:
So where is it that they said somewhere below that even if the support portion is limited to the male element,

[00:25:27] Speaker 03:
They can prevail.

[00:25:29] Speaker 02:
I'm sorry your honor if I misspoke I was talking about the collar 131 in that in that section and Under the board's interpretation of advancing as Edwards admitted that collar 131 would not meet that location with the male element They're right about the male element with regard to support then why how is it that the advancing limitation of

[00:25:52] Speaker 03:
takes care of that.

[00:25:53] Speaker 02:
I think because the board made fact findings that there is no credible evidence that has been put forward by Edwards about that limitation, regardless of what the support portion is.

[00:26:09] Speaker 02:
The board found that the larger problem with petitioners' argument is that it is largely speculative and based on petitioners' interpretation of the figures of Goldfarb.

[00:26:18] Speaker 02:
This is the sections of fact finding

[00:26:21] Speaker 02:
Apex 56 and 57 because their argument is about Goldfarb being drawn to scale and it is not.

[00:26:30] Speaker 02:
They say the petitioner's reliance upon figures 22A and B as teaching this limitation is unavailing because it's largely speculative depending on what the length of the distal element 18 could be.

[00:26:42] Speaker 02:
That fact finding is supported by substantial evidence.

[00:26:46] Speaker 04:
I still need to get an answer, though, to my question about all the issues.

[00:26:49] Speaker 04:
Sure.

[00:26:50] Speaker 04:
So I don't want you to leave here without laying that out, please.

[00:26:53] Speaker 02:
Okay.

[00:26:53] Speaker 02:
So then also, support portion.

[00:26:57] Speaker 02:
If male element is not a support portion and collar is not a support portion, then you can also affirm because there is a missing limitation.

[00:27:05] Speaker 02:
In fact, I think the only way you can remand is if you find that the advancing construction is wrong and male element 19 is a support portion that surrounds and that Edwards' evidence related to the patent drawings can be relied on.

[00:27:20] Speaker 02:
That's the path to remand for purposes of male element 19.

[00:27:26] Speaker 02:
And with regard to collar 131, the court would have to find that the advancing construction is wrong, and collar 131 is the support portion that is coupled to the clips, which there are fact findings that is not, and that there could be evidence of the collar meeting the advancing limitations.

[00:27:44] Speaker 00:
Sorry, you got that.

[00:27:46] Speaker 04:
We didn't need to reach more than just the advancing limitation.

[00:27:48] Speaker 04:
Like I would say when I was reading your briefs, it sounded like you thought, well, that's all we need to deal with.

[00:27:53] Speaker 04:
And I heard something different from opposing counsel.

[00:27:55] Speaker 04:
I just wanted to make sure I had a certain answer on that.

[00:27:57] Speaker 02:
Our view is that you don't need to reach anything other than the advancing limitation.

[00:28:00] Speaker 02:
If you reach the advancing limitation and agree with the board that its construction was correct, we think that you can affirm.

[00:28:07] Speaker 02:
We think that if the board's interpretation of advancing was incorrect,

[00:28:12] Speaker 02:
and advancing requires something different than what is disclosed by the patent, in our view, then we still think you can affirm, because there are still missing elements if there is no support portion.

[00:28:24] Speaker 03:
Can you understand how you think we can affirm if they're correct about advancing unless we agree with the board on support?

[00:28:40] Speaker 00:
If we agree that there's a client instruction problem with support portion and that male member wasn't properly considered as a support portion under the correct claimant instruction, then doesn't that error infect its interpretation of the advancing limitation?

[00:28:57] Speaker 00:
I didn't see anything that suggested that the board said, even if the male member

[00:29:02] Speaker 00:
alone could be considered a support portion, we still find that it doesn't render this anticipated or obvious.

[00:29:12] Speaker 02:
Your honor, I think what we would point to for that is the same fact findings of advancing on page 56 and 57.

[00:29:20] Speaker 00:
But it doesn't talk about the male number in the same way.

[00:29:22] Speaker 00:
It just talks about it in more general terms.

[00:29:25] Speaker 00:
And that's the problem.

[00:29:27] Speaker 00:
And don't get me wrong.

[00:29:29] Speaker 00:
I think this is a very hard case, because I hate these arguments about implicit claim construction if they're matched up.

[00:29:35] Speaker 00:
But this is kind of an unusual case, where we're not talking about

[00:29:40] Speaker 00:
the original claims where the parties had an opportunity to ask for claim constructions in the light.

[00:29:46] Speaker 00:
This is a motion to amend with claims put in that have no corresponding definition in the specification, right?

[00:29:55] Speaker 00:
So we're trying to figure out what support portion means and what the board understood based upon its decision.

[00:30:02] Speaker 00:
And so I find it a little difficult to

[00:30:07] Speaker 00:
to say that support portion has to be interpreted the way the board did, necessarily.

[00:30:15] Speaker 02:
I see I'm running short on time.

[00:30:16] Speaker 02:
I'd like to just make two points on the support portion and the alleged implicit claim construction issues.

[00:30:21] Speaker 02:
I did want to point out, based on something that Mr. Stoll said, about there not being support or discussion in the specification and drawings about what the terms mean.

[00:30:29] Speaker 02:
In the motion to amend, it is required for the patent owner to explain where in the specification each of the new limitations exists.

[00:30:37] Speaker 02:
That happened.

[00:30:38] Speaker 02:
We did that.

[00:30:39] Speaker 02:
The things that we pointed to for support portion were at Apex 0398,

[00:30:45] Speaker 02:
pointing to figures 1, 3G, and then columns 14, 13 through 20, and 16, 10 through 17.

[00:30:53] Speaker 02:
In assessing whether there was 112 support for those new limitations, the board found that we conclude that the proposed substitute claims do not add new matter.

[00:31:02] Speaker 02:
We also conclude that the specification provides sufficient written description support and enablement support for those limitations at FX 15.

[00:31:11] Speaker 02:
Petitioner didn't dispute those issues, and that is not an issue on appeal.

[00:31:15] Speaker 02:
So there is support for these things.

[00:31:17] Speaker 02:
The other thing I will leave with is there's a lot of case law cited, not a lot, there's some case law cited by Edwards with regard to this idea of splitting up different members.

[00:31:28] Speaker 02:
All of the cases that they cite there, the CCS case, and Rex Nord, et cetera, those deal with the issue of whether or not a patented limitation can be met by more than one element in the prior art, for example.

[00:31:42] Speaker 02:
They don't cite cases going the other way, that you can artificially split up a prior art element and use that artificial splitting to meet a separate claim limitation in the patent.

[00:31:52] Speaker 02:
So with that, we'd like to finish with that.

[00:31:54] Speaker 02:
Thank you very much.

[00:31:54] Speaker 03:
All right.

[00:31:56] Speaker 03:
Thank you, Mr. Stoll.

[00:31:58] Speaker 03:
She went over by a minute, so add a minute to Mr. Bubbleslash, please.

[00:32:06] Speaker 01:
Thank you, Your Honor.

[00:32:08] Speaker 01:
Just give him two minutes.

[00:32:15] Speaker 01:
Thank you, your honor.

[00:32:16] Speaker 01:
I'm going to pick up with support portion and specifically this idea that the board made a factual finding about the support portion.

[00:32:23] Speaker 01:
If we look at appendix 41, which is where the board has this discussion, the board states

[00:32:30] Speaker 01:
Thus, all of the elements described by petitioners being separate are, in fact, a single unit of that, and then it says the different functions.

[00:32:38] Speaker 01:
Notice there's no evidentiary site in that paragraph anywhere to support that.

[00:32:44] Speaker 01:
That argument, that alleged evidence, wasn't of record.

[00:32:47] Speaker 01:
This is the board supplying or doing its own fact finding without support.

[00:32:53] Speaker 01:
The only support

[00:32:54] Speaker 01:
that was in the record is in the prior paragraph, where Edwards submitted evidence that the male portion of the coupling member is a support portion because it bears the weight of the fixation device during delivery.

[00:33:08] Speaker 01:
It absorbs and transfers the axial rotational forces imposed by the shaft, and it holds the device in the correct orientation.

[00:33:16] Speaker 01:
So Edwards did point to unique aspects, unique functions of the male element

[00:33:22] Speaker 01:
In its reply brief, it's cited to Goldfarb 267, which explains that the male element performs those functions.

[00:33:30] Speaker 01:
When the board says, thus, all elements of the coupling member describes that, there is no evidentiary support to support that.

[00:33:37] Speaker 03:
And so...

[00:33:38] Speaker 03:
particularly the unique features that you say that you argued the male element supports that aren't actually being supported by the entire S-curve, which includes more than the male element.

[00:33:51] Speaker 03:
What were male elements support features that you just claimed that you have separately argued?

[00:33:57] Speaker 01:
So the male element, it bears the weight of the entire fixation price, which none of the other portions of the coupling number do.

[00:34:04] Speaker 01:
It absorbs and transfers the axial and rotational forces imposed by the shaft on the top of the fixation device, and that's explained in Goldfarb 267 at appendix 1374, column 15.

[00:34:18] Speaker 01:
And it holds the device in the correct orientation, which again, other portions of the fixation device, like the legs for the circular member in the center of the coupling member, do not do.

[00:34:29] Speaker 01:
So it does have unique functional aspects.

[00:34:34] Speaker 04:
And you're saying that all three of these things are in this page 41 of the unique optional aspects, in your opinion?

[00:34:40] Speaker 01:
That's correct.

[00:34:41] Speaker 01:
Those are the ones that Edwards identified during the proceedings and submitted evidence to support.

[00:34:49] Speaker 03:
OK, thank you, counsel.

[00:34:49] Speaker 03:
This case is taken under submission.