[00:00:00] Speaker 04:
All right, our next case for argument is 22-1644, Custer v. Western Digital Corporation.

[00:00:06] Speaker 04:
Mr. Reed, please proceed.

[00:00:09] Speaker 01:
Thank you, Your Honor.

[00:00:10] Speaker 01:
May it please the Court?

[00:00:11] Speaker 01:
Good morning.

[00:00:12] Speaker 01:
David Reed for Martin Kooster.

[00:00:15] Speaker 01:
I would like to start this morning with Mr. Kooster's prior invention in the cooperation issue that we've raised in our briefing.

[00:00:23] Speaker 01:
The requirement for corroboration is fundamentally a requirement about credibility of the inventor's testimony.

[00:00:30] Speaker 01:
And the purpose of that requirement is to guard against litigation-inspired fabrication by an inventor.

[00:00:38] Speaker 01:
Importantly, it's not a demand for evidence that independently proves every aspect or detail of the inventor's account of his prior invention.

[00:00:49] Speaker 03:
What is your best independent corroboration evidence of reduction of practice before the filing date?

[00:00:54] Speaker 03:
Can you just kind of point us to that or talk to that aspect?

[00:00:57] Speaker 01:
Of course, Your Honor.

[00:00:58] Speaker 01:
The evidence under the rule of reason, which applies here, must be weighed as a whole.

[00:01:04] Speaker 01:
So it's a combination of pieces of evidence.

[00:01:08] Speaker 01:
First and foremost, it's his design notebooks.

[00:01:12] Speaker 01:
that he kept in the ordinary course of his development of these products.

[00:01:17] Speaker 01:
And those design notebooks not only show sketches of his prototype, which is in the record, and sketches of his design, but the notebooks also discuss meetings with his customer, Victorinox, which Mr. Kuster testifies, and it makes common sense, your honor, and this is a common sense test,

[00:01:41] Speaker 01:
that you would not set, a company like Victorinox would not set a timeline to bring a product to market if that product does not first exist.

[00:01:51] Speaker 01:
And then the evidence, the record also includes evidence that going forward beyond the Shell reference, according to the timeline set forth in Mr. Kooster's notebooks, the product was actually commercialized according to that timeline.

[00:02:08] Speaker 01:
So I think it's those pieces of evidence together

[00:02:11] Speaker 01:
add up to a story to a body or corpus of evidence that collectively supports Mr. Kuster's account.

[00:02:18] Speaker 04:
The problem is the notebook has no indicia of independence.

[00:02:22] Speaker 04:
None.

[00:02:23] Speaker 04:
So look, if the whole point of this is to require corroborative evidence

[00:02:27] Speaker 04:
that makes certain that somebody doesn't go backwards and falsify things.

[00:02:31] Speaker 04:
How do we have any assurance that that's not what happened with this notebook?

[00:02:34] Speaker 04:
Because it could.

[00:02:36] Speaker 04:
I mean, the inventor could very easily go back and create a notebook like this.

[00:02:41] Speaker 04:
I mean, that's why companies have other people sign the bottoms of pages and date them and do things to verify not the substance of what's on the page, but the fact that the page existed as of a date and time.

[00:02:54] Speaker 01:
Your honor, this court has held that the lack of witnessing in a notebook does not disqualify a notebook from serving as evidence of corroboration.

[00:03:03] Speaker 01:
And I would point the court to the hypertech versus monoclonal antibodies case that's cited in the briefing here.

[00:03:10] Speaker 01:
And in that case, the court, there was a notebook.

[00:03:15] Speaker 01:
It was not contemporaneously witnessed.

[00:03:17] Speaker 01:
It was witnessed months or years later.

[00:03:19] Speaker 01:
And the court gave that notebook corroborating value.

[00:03:23] Speaker 01:
for the prior invention.

[00:03:25] Speaker 01:
And part of that, I think, was the circumstances in that case.

[00:03:29] Speaker 01:
The court notes that it was a startup company.

[00:03:31] Speaker 03:
Now, did you just say, though, that it was witnessed at some point in time, just later, and in this case, no witnessing whatsoever, just to kind of get our facts aligned?

[00:03:41] Speaker 01:
That's correct, Your Honor, but here this record includes evidences at least as good as witnessing.

[00:03:48] Speaker 01:
Pages from Mr. Kooster's notebooks were filed in 2011 with provisional applications with the USPTO.

[00:03:57] Speaker 01:
So those provisional application filings indisputably date those notebooks back in time to the time period when the development occurred.

[00:04:08] Speaker 01:
that removes any doubt that these could be a litigation.

[00:04:14] Speaker 04:
But that doesn't get it back to pre-2010, which is what you need, right?

[00:04:17] Speaker 04:
I mean, the fact that you have proof that the notebook pages existed in 2011 doesn't mean that they existed in 2010.

[00:04:24] Speaker 01:
Well, I think that's the, again, it's a preponderant standard, and the question is what's more likely than not?

[00:04:31] Speaker 04:
What is your problem for us on review?

[00:04:34] Speaker 04:
What is our standard that we apply?

[00:04:36] Speaker 01:
The preponderance standard, it's a burden that as we... What do we review the fact finding below under?

[00:04:43] Speaker 01:
So if the fact finding... You review the finding of the fact for substantial evidence, but

[00:04:53] Speaker 01:
The test it supplied was an incorrect one here, and I think that's an error of law, a legal error in failing to weigh the evidence collectively.

[00:05:01] Speaker 01:
The board dismissed the notebooks as corroborating in their entirety because of the lack of witnessing, and did not take into account or give weight to the corroboration evidence.

[00:05:15] Speaker 01:
And it's implausible that these would have been fabricated.

[00:05:19] Speaker 01:
Uh, the, the provisional filings were before the show reference that we're into dating here before it was even published.

[00:05:27] Speaker 01:
So show was not even in the public record at that point.

[00:05:31] Speaker 03:
You mentioned the Victorinox meetings.

[00:05:34] Speaker 03:
What do you have other than testimony or notebook pages to, um, indicate these meetings happened at a certain date?

[00:05:43] Speaker 01:
Um,

[00:05:44] Speaker 01:
The evidence that the meetings occurred at a certain date is based on the notebook.

[00:05:51] Speaker 01:
So nothing other than the notebook?

[00:05:53] Speaker 01:
No, other than that there is evidence that Victorinox subsequently commercialized the invention, which ties together with the notebook and the body of evidence lends credibility to that meeting occurred because the timeline set forth in that meeting and the meeting notes dovetails with the timeline that actually came to pass.

[00:06:14] Speaker 03:
When you say there's that subsequent evidence of commercialization, what is the date of that evidence that you're referring to?

[00:06:21] Speaker 01:
That evidence is commercial products dated in mid-2011 after Shell and then the Victorinox booth at the CES show that occurs every January, so January 2012 in this case.

[00:06:39] Speaker 01:
The, I'd like to circle back and note again, the, the hybrid tech case mentioned that it was a startup company and you have to look at the circumstances here.

[00:06:48] Speaker 01:
Circumstantial evidence, this court's cases have, have supported the idea that circumstantial evidence can be strong evidence of corroboration.

[00:06:57] Speaker 04:
So here's the problem.

[00:06:58] Speaker 04:
I mean, I just see this as a fact question.

[00:07:00] Speaker 04:
I mean, you have photographs at the 2012 consumer electronics show.

[00:07:06] Speaker 04:
And that's in 2012.

[00:07:09] Speaker 04:
And that seems to be the first what I'll call independent evidence.

[00:07:12] Speaker 04:
Everything else seems to be entirely Mr. Kuster's own testimony and or his notebook, which isn't corroborated in any way.

[00:07:24] Speaker 04:
What you could have argued to the board, and maybe you might have persuaded them, is that

[00:07:29] Speaker 04:
He couldn't, for example, have had this commercial embodiment at the 2012 show unless he had been taking all these steps leading up to it.

[00:07:36] Speaker 04:
And perhaps that would have persuaded them.

[00:07:38] Speaker 04:
Those are the kinds of things, though, that are all part of a question of fact that the fact finder decides in the first instance.

[00:07:45] Speaker 04:
And you're here on appeal, and I don't see the legal error.

[00:07:48] Speaker 04:
It was your obligation to tell the board.

[00:07:51] Speaker 04:
why the notebook was, in fact, credible despite not being witnessed.

[00:07:56] Speaker 04:
And it was your obligation to convince them of that.

[00:07:59] Speaker 04:
And that's a question of fact.

[00:08:03] Speaker 01:
Your Honor, the board placed great weight on the lack of witnessing, which the notebooks are not witnessed.

[00:08:10] Speaker 02:
did not give any that their job i mean they're the ones that look at the piece of evidence and they say well we don't believe this evidence because it's not witness it's not credible in our view we don't get overturned that just because you tell a good story about how you think all this taken together shows i mean that was

[00:08:29] Speaker 02:
You know, the board's job, and apparently you didn't convince them.

[00:08:33] Speaker 01:
I would submit, Your Honor, that the board parsed the evidence into individual buckets, and the evidence fits together like pieces of a puzzle, and the board didn't consider that.

[00:08:43] Speaker 01:
It's not until those pieces are put together that the full picture becomes clear and lends credibility to Mr. Kooster.

[00:08:50] Speaker 02:
No, they didn't consider it.

[00:08:51] Speaker 02:
I hear these kind of the board didn't consider things collectively or didn't consider all the time, but when they're discussing it, they have to discuss it piece by piece to show why it doesn't.

[00:09:01] Speaker 02:
Do you want a sentence from them saying, and altogether it still doesn't convince us?

[00:09:07] Speaker 02:
Isn't that implicit in their finding?

[00:09:09] Speaker 01:
It's not exactly that, Your Honor.

[00:09:11] Speaker 01:
It's the lack of acknowledgement or discussion or recognition of the linkages.

[00:09:17] Speaker 01:
And there's one other piece of independent evidence we haven't discussed, which is

[00:09:20] Speaker 01:
attorney time records.

[00:09:22] Speaker 01:
Mr. Kuster, in October, before the Shal reference, met with attorneys.

[00:09:26] Speaker 03:
Don't the billing records, though, lack detail to support reduction of practice?

[00:09:31] Speaker 01:
Your Honor, again, every detail of the account does not have to be corroborated, much less than a single piece of evidence.

[00:09:39] Speaker 01:
The attorney time records match the notes from the meetings that were noted in the notebooks and lend that credibility to the notebooks.

[00:09:47] Speaker 01:
It's that connection point.

[00:09:49] Speaker 01:
That's what it means when you look at weighing the evidence as a whole.

[00:09:53] Speaker 02:
Are you saying that basically if you pile up enough completely uncorroborated stuff together, that suddenly it transforms into corroborating it together?

[00:10:04] Speaker 01:
No, Your Honor, the test is a test under the rule of reason where all of the evidence put forth must be considered as a whole, not individually, to determine, is the inventor credible?

[00:10:16] Speaker 01:
Is it more likely than not that he's lying, or that he's fabricating his testimony, or is it more likely than not that he's telling the truth?

[00:10:23] Speaker 01:
And here, there's been no presentation of an alternative theory of how this body of evidence supports anything

[00:10:32] Speaker 01:
any timeline of development other than the timeline that Mr. Kuster gave sworn testimony that he followed?

[00:10:39] Speaker 02:
I mean, isn't the alternative theory that he didn't follow this timeline and he made all this stuff up?

[00:10:46] Speaker 01:
there's been no presentation of an alternative theory.

[00:10:49] Speaker 02:
It's been an attack on- It's not their burden to present the alternative theory.

[00:10:52] Speaker 02:
On a substantial evidence review, you only win for lack of substantial evidence if no reasonable fact finder could reach the result the board did.

[00:11:01] Speaker 02:
Couldn't a reasonable fact finder say, he didn't corroborate anything.

[00:11:05] Speaker 02:
We don't have anything.

[00:11:06] Speaker 02:
So we just don't believe him that this all occurred before the relevant date.

[00:11:11] Speaker 01:
Under the dynamic drinkware decision, this is an evidentiary question.

[00:11:16] Speaker 01:
What does the evidence show is more likely than not.

[00:11:19] Speaker 01:
And under 35 U.S.C.

[00:11:21] Speaker 01:
316E and under the dynamic drinkware decision, the burden of persuasion rests on the petitioner here at Western Digital to show all issues of fact, including credibility,

[00:11:35] Speaker 01:
by a preponderance.

[00:11:37] Speaker 01:
And so without any evidence, and this court in the DuPont decision noted that it is highly relevant that there's been no alternative theory, no evidence that would call into question Mr. Kuster's testimony.

[00:11:52] Speaker 01:
And that's the second issue we've raised in our briefing, is the misapplication of that burden.

[00:11:58] Speaker 01:
In the final written decisions, the

[00:12:00] Speaker 01:
The panel faulted Mr. Kuster for failing to satisfy his burden, and that's a burden he did not bear under the statute because he has an issued and valid and presumptively valid U.S.

[00:12:12] Speaker 01:
patent.

[00:12:18] Speaker 01:
So I see that I'm into my rebuttal, Tom.

[00:12:19] Speaker 01:
May I reserve the ballots?

[00:12:20] Speaker 04:
Of course.

[00:12:21] Speaker 04:
Thank you, Mr. Reed.

[00:12:28] Speaker 04:
How do I say your name, counsel?

[00:12:30] Speaker 04:
How do I say your name?

[00:12:32] Speaker 04:
Chi Kafer.

[00:12:33] Speaker 04:
I would not have gotten that.

[00:12:34] Speaker 04:
I'm glad I asked.

[00:12:35] Speaker 04:
Ms.

[00:12:35] Speaker 04:
Chi Kafer, please proceed.

[00:12:37] Speaker 04:
I would have butchered that one.

[00:12:38] Speaker 00:
Sorry.

[00:13:00] Speaker 00:
May it please the court?

[00:13:02] Speaker 00:
Kiran Kike for on behalf of Western Digital.

[00:13:05] Speaker 00:
As a general overview, the board did a thorough job with respect to the shower reference, but committed reversible error with respect to the he reference, as reflected in Western Digital's cross appeal.

[00:13:16] Speaker 00:
I'll address the three issues raised in Mr. Kuster's appeal as to the 243 patent first, before turning to Western Digital's appeal as to the 206 patent.

[00:13:25] Speaker 00:
So the first issue is the rule of reason.

[00:13:26] Speaker 00:
And as Western Digital has identified in their brief,

[00:13:30] Speaker 00:
more than clear.

[00:13:31] Speaker 00:
that both parties advocated for the rule of reason to be applied.

[00:13:35] Speaker 00:
And then if you go through each final written decision, you can see both final written decisions.

[00:13:39] Speaker 00:
You can see that they correctly said that the rule of reason was the correct standard to apply.

[00:13:44] Speaker 00:
And then they went through thorough analysis applying the rule of reason and addressing each piece of evidence.

[00:13:52] Speaker 00:
And I would submit, of course, they have to, as Judge Hughes said, they have to analyze it individually.

[00:13:59] Speaker 00:
But then, of course, they did

[00:14:00] Speaker 00:
look at all the pieces together in order to conclude, unfortunately, Mr. Kuster did not meet his burden of proof to show that the Shao reference that Mr. Kuster's invention predated the Shao reference.

[00:14:16] Speaker 00:
Final written decisions are very clean as to this point, and unfortunately he didn't meet his burden.

[00:14:21] Speaker 00:
And that goes into the second issue, which is specifically that the burdens of proof were properly allocated in here.

[00:14:28] Speaker 00:
Western Digital had the initial burden of proof.

[00:14:31] Speaker 00:
Western Digital met that burden of proof by presenting the shell reference.

[00:14:35] Speaker 00:
The burden of proof then flipped to Mr. Kuster to provide corroborating evidence showing both that he reduced it to practice

[00:14:43] Speaker 00:
and that he reduced it to practice as of the specific date.

[00:14:46] Speaker 00:
And unfortunately, he was unable to meet that burden.

[00:14:50] Speaker 00:
And I cite to Judge Moore's case, the Appator case, which provides kind of a clear explanation of how this works and how he did not meet his burden of production.

[00:15:01] Speaker 00:
And there was some quibbling of the language with respect to language in the final written decisions and whether or not this implies

[00:15:09] Speaker 00:
burdens were shifted and the language of the final written decisions actually matches very close to the Appator case.

[00:15:18] Speaker 00:
Reflecting actually what the burden actually is and then how it was met And so then moving on to the third issue, which is whether or not shall actually disclose this limitation the specific limitation of connection fingers Embedded to be exposed upon the cover of the contact bar and embedded wasn't it's a it was an agreed-upon definition and

[00:15:41] Speaker 00:
which is set firmly into a mass or material.

[00:15:43] Speaker 00:
And there is a claim that there's reversible error because the wrong claim construction was applied right out of the gate.

[00:15:52] Speaker 00:
I would say that is incorrect because the board in this situation applied both constructions.

[00:15:57] Speaker 00:
So it said that the broader construction is the correct construction.

[00:16:01] Speaker 00:
But regardless, we are going to apply the narrow construction just to prove that also under the narrow construction,

[00:16:11] Speaker 00:
reference actually does disclose the limitation in question and that is supported by the evidence in the record which shows, and I would just point, you know the board, this isn't our brief, but of course point the board to, excuse me, point this court to figure nine of the show reference which shows the long connection fingers and even if we're limiting it just to the exposed portion it shows that they dip down to confirm that they go into the connector main body which is referenced in figure ten.

[00:16:39] Speaker 00:
And so there's

[00:16:40] Speaker 00:
substantial evidence to support the more narrow claim construction and therefore the Shau reference clearly does disclose the limitation and there should be no further inquiry as to that.

[00:16:55] Speaker 00:
And unless there are any questions as to the 243 patent, I was going to move on to Western Digital's cross appeal, which is the 206.

[00:17:02] Speaker 00:
And so as to the 206 patent, this is dealing with the limitation

[00:17:08] Speaker 00:
connection fingers embedded to be exposed upon the connection surface.

[00:17:12] Speaker 00:
And just to sort of crystallize the issue, the issue here is that the board's determination that reference he does not disclose the specific limitation is based exclusively on Welch.

[00:17:24] Speaker 00:
And Welch is the expert for Mr. Kuster.

[00:17:27] Speaker 00:
And that is at appendix 035 to 036.

[00:17:30] Speaker 00:
And you can go through it.

[00:17:31] Speaker 00:
It's two pages.

[00:17:32] Speaker 00:
But every single citation, there's an itch in there, but it goes right back to Welch.

[00:17:36] Speaker 00:
And so

[00:17:38] Speaker 00:
All of Welch's testimony, unfortunately, is either plainly inconsistent with the record, or it's based on incorrect understanding of the claims, which means it must be disregarded under the Homeland Housewares case, which we cited to the court, which is 865 F.

[00:17:53] Speaker 00:
3rd, 1372 at 1378.

[00:17:57] Speaker 00:
And so I'll just walk briefly through the paragraphs of Welch.

[00:18:03] Speaker 04:
Before you get to Welch, I mean, my problem is

[00:18:07] Speaker 04:
that it seems like he's disclosure has the contact pads formed on the surface of the substrate.

[00:18:14] Speaker 04:
And that's at column two, lines 28 to 30.

[00:18:17] Speaker 04:
I don't see that he's disclosure suggests contact pads fixed firmly into the substrate, which is what's required by the claims.

[00:18:24] Speaker 00:
Correct.

[00:18:24] Speaker 00:
And that's where we would cite you to do a comparison.

[00:18:27] Speaker 00:
of figure 3, along with figure 6 of he, to show you, and that's an appendix of 4242 is figure 3, which shows that they're flush with the contacting pads.

[00:18:39] Speaker 00:
But if you look to figure 6, it has a cross view.

[00:18:42] Speaker 04:
Yes, but the problem is, figures are not to scale.

[00:18:45] Speaker 04:
Figures are not to be relied on for what they disclose in the way in which you're suggesting.

[00:18:49] Speaker 04:
And on top of all of that, this is a substantial evidence question.

[00:18:52] Speaker 04:
So you have a column to

[00:18:54] Speaker 04:
Lines 28 to 30, a statement that the contact pads are formed on the surface of the substrate, that would suggest they don't fix firmly into the substrate.

[00:19:04] Speaker 04:
You want to point me to some figures, which I'm not allowed to rely on, and certainly not to contradict the clear language in column two.

[00:19:09] Speaker 04:
And all of this is a substantial evidence question.

[00:19:11] Speaker 04:
What am I missing?

[00:19:12] Speaker 04:
Because it seems like it's an open and shut case against you.

[00:19:15] Speaker 00:
Well, if you're relying just on the he figure, we do think there are limitations.

[00:19:19] Speaker 00:
Excuse me.

[00:19:19] Speaker 00:
We do think there are disclosures in the specification.

[00:19:22] Speaker 00:
that it is of the PCB.

[00:19:23] Speaker 04:
Statutial evidence, remember?

[00:19:25] Speaker 04:
Yes.

[00:19:25] Speaker 04:
So what is wrong with the board's conclusion about what I just said?

[00:19:28] Speaker 00:
The issue that is wrong with the board's conclusion is that the board's conclusion relies exclusively on Mr. Welch's testimony.

[00:19:35] Speaker 04:
No, it relies on column 2, line 28 to 30.

[00:19:38] Speaker 04:
It expressly cites it.

[00:19:39] Speaker 04:
And it also relies on Mr. Welch's decision thereof.

[00:19:43] Speaker 04:
But the column speaks for itself.

[00:19:44] Speaker 04:
It doesn't say we rely only on Mr. Welch.

[00:19:47] Speaker 04:
It points to the reference.

[00:19:48] Speaker 00:
Well, it's true.

[00:19:50] Speaker 00:
But every single time it's citing to it, it's citing to Mr. Welch's testimony, which is citing back to reference he.

[00:19:56] Speaker 04:
There is substantial evidence in this record, regardless of Mr. Welch.

[00:20:00] Speaker 04:
The substantial evidence is column two, lines 28 to 30, which the board expressly cites.

[00:20:06] Speaker 04:
I don't care that they also mention Mr. Welch.

[00:20:08] Speaker 04:
Who cares?

[00:20:10] Speaker 04:
The reference speaks for itself.

[00:20:11] Speaker 04:
It is the substantial evidence.

[00:20:13] Speaker 00:
Right.

[00:20:13] Speaker 00:
And our position is that reference he does disclose.

[00:20:17] Speaker 00:
the limitation it discloses that they're into, and the reason is because it says that they are golden fingers of the PCB, and also that they're exposed on the upper surface.

[00:20:27] Speaker 04:
This is your argument.

[00:20:28] Speaker 04:
It's a substantial evidence fact question for the board, and column 2, line 28 to 30 supports what they're saying.

[00:20:33] Speaker 02:
I mean, if the board had agreed with you, you would probably be winning on substantial evidence, too.

[00:20:37] Speaker 02:
Also true.

[00:20:37] Speaker 02:
But they didn't.

[00:20:38] Speaker 02:
We're not here to second guess the board's reading of this reference when there's a specific statement that supports one side and a specific statement that supports the other side.

[00:20:48] Speaker 02:
We get way too many of these PTAP appeals where you argue substantial evidence and there's clearly substantial evidence and you're really just re-arguing your case.

[00:20:57] Speaker 00:
Well, we do think that there obviously there were errors in terms of relying on Welch's testimony.

[00:21:02] Speaker 02:
But if we get rid of that, we still have the reference.

[00:21:06] Speaker 02:
And the only way you win is if the reference can't possibly be read to support the board's conclusion.

[00:21:13] Speaker 02:
And that's just not the case.

[00:21:14] Speaker 00:
Well, our position is that the reference should be read to support our conclusion.

[00:21:18] Speaker 02:
You've lost your case by saying it should be read.

[00:21:20] Speaker 00:
Yes, I understand you disagree.

[00:21:21] Speaker 00:
Yes.

[00:21:22] Speaker 02:
Right?

[00:21:22] Speaker 02:
No, I don't care if I might agree with you.

[00:21:26] Speaker 02:
When you say it should be read to do something, that's the wrong standard.

[00:21:30] Speaker 02:
The standard is no reasonable person could find it to be read this way.

[00:21:35] Speaker 02:
You did not say that.

[00:21:37] Speaker 02:
You said you think it should be read to read this way.

[00:21:39] Speaker 02:
They think it should be read the other way.

[00:21:41] Speaker 02:
The board agreed with them.

[00:21:42] Speaker 02:
You won part of the case.

[00:21:43] Speaker 02:
You lost part of the case.

[00:21:44] Speaker 00:
Yes, I understand that.

[00:21:45] Speaker 00:
Our position is that he discloses that they are into the connection surface, which is shown both by the figures and by the specification, which is saying of the PCB and exposed on the upper surface.

[00:21:59] Speaker 02:
Do you understand why I'm frustrated?

[00:22:00] Speaker 02:
Because you're not making an argument that would prevail under our standard of review.

[00:22:05] Speaker 02:
You're making an argument that you might win if we were the trior of fact.

[00:22:10] Speaker 02:
It doesn't do you any good or your client any good to make arguments that aren't directed to our standard review.

[00:22:20] Speaker 02:
I mean, maybe you just can't in good faith say there's no way to read he the way the board found it.

[00:22:26] Speaker 02:
But if you can, that's the argument you should be making.

[00:22:29] Speaker 02:
But I don't hear it from you.

[00:22:30] Speaker 00:
We do not believe there's any way to read he.

[00:22:33] Speaker 00:
We think it is clear from both the specification and the figures that these are set into the connection surface.

[00:22:41] Speaker 02:
You shouldn't say that it's the only way to read that reference.

[00:22:47] Speaker 02:
That's the only way you win.

[00:22:48] Speaker 00:
Our position is that it is the only way to read the reference.

[00:22:51] Speaker 00:
And unfortunately also, of course, the board needed more than the reference because it also relied on Welch to corroborate this and there were multiple flaws.

[00:23:01] Speaker 00:
and issues with Welch both reliance on the wrong claim construction and also reliance on the fact that they were copper fingers as opposed to the actually disclosed gold fingers.

[00:23:12] Speaker 00:
And so I understand there is a dispute about that.

[00:23:14] Speaker 00:
I completely understand and respect that, but that is our position as to that.

[00:23:22] Speaker 00:
And with that, thank you.

[00:23:24] Speaker 04:
Okay.

[00:23:25] Speaker 04:
Mr. Reed, you have some of our time.

[00:23:39] Speaker 01:
Thank you, Your Honors.

[00:23:40] Speaker 01:
I'd like to turn to the SHAL's disclosure or failure to disclose embedded connection fingers as required by the claims.

[00:23:50] Speaker 01:
And no reasonable person could read SHAL as disclosing embedded connection fingers.

[00:23:57] Speaker 01:
There was a discussion during my friend's presentation about the tip portions of SHAL.

[00:24:02] Speaker 01:
as being embedded, but there's no teaching in Shao that any tip portion or any other portion of the reference is fixed firmly into a master material of the contact bar of Shao.

[00:24:16] Speaker 01:
If you turn to page 67 of the blue brief, there are annotated figures of the embodiment of Shao that's being relied upon.

[00:24:24] Speaker 01:
And if you look at the exploded view in figure nine,

[00:24:29] Speaker 01:
There's no notch or recess where those tip portions would be received into that material, into that mass or material.

[00:24:38] Speaker 01:
There's also a discussion at column seven, starting at line 39 of the manufacturing process of Schaal's connector.

[00:24:47] Speaker 01:
And that process makes clear that you have these terminals.

[00:24:52] Speaker 01:
They're separate from the blue element, blue colored element here, which is the connector main body.

[00:24:59] Speaker 01:
And then those, after you take those pieces individually, you assemble them together.

[00:25:04] Speaker 01:
There's no discussion of a molding process.

[00:25:07] Speaker 01:
There's no discussion of any manufacturing process that would have resulted in those connection fingers being fixed firmly into a master material.

[00:25:17] Speaker 04:
Except you have Dr. Baker's opinion that a skilled artisan would have understood it was necessary or it wouldn't function properly.

[00:25:24] Speaker 04:
because it was necessary to prevent the terminals from bending upward or moving laterally.

[00:25:28] Speaker 04:
He said this at A2837, paragraphs 250 to 253, and I don't see how that's not substantial evidence to support the board's conclusion.

[00:25:36] Speaker 01:
So we would submit that no reasonable person could accept that in view of Shal's disclosure.

[00:25:41] Speaker 01:
Shal provides specific structures to hold its fingers in place, slot columns and notches that hold those terminals 322 where they are.

[00:25:54] Speaker 01:
Mr. Kuster's invention was designed to be incorporated into a Swiss army knife.

[00:25:59] Speaker 01:
It needed to be slim.

[00:26:01] Speaker 01:
It needed to be durable.

[00:26:02] Speaker 01:
He achieved that by recognizing that you could embed those connection fingers into a contact bar.

[00:26:09] Speaker 01:
Shao's approach is different.

[00:26:11] Speaker 01:
It uses slot columns.

[00:26:12] Speaker 01:
It uses notches.

[00:26:13] Speaker 02:
It doesn't... It affects them.

[00:26:16] Speaker 01:
I agree, but the question is whether a reasonable person could read Shao as disclosing embedding, and we would submit that no reasonable person could read that from Shao.

[00:26:27] Speaker 01:
It's a step too far and beyond what's reasonable.

[00:26:31] Speaker 04:
OK, that is the conclusion of your rebuttal time.

[00:26:35] Speaker 04:
Thank you, Your Honor.

[00:26:36] Speaker 04:
Because he did not address the cross-appeal, you have no reply, rebuttal, whatever.

[00:26:40] Speaker 04:
So this case is taken under submission.

[00:26:45] Speaker 04:
Thank both counsels.