[00:00:00] Speaker 00:
We have five cases on our calendar this morning, one from the PTAB, one from the MSPB, two from the Court of Federal Claims, one of which is being submitted on the briefs and not argued, and another case from the District Court.

[00:00:20] Speaker 00:
Our first case is the Noko Company versus Shenzhen Kaku Technology.

[00:00:27] Speaker 04:
uh... two thousand twenty two sixteen forty six and seventeen forty one uh... the morning system is uh... good morning judge lurian may please the court on knuckles direct appeal we present report with two questions of law the first has to do with the board's treatment of the richardson reference in its changing claim construction between institution and final written decision

[00:00:53] Speaker 04:
The second is the board's construction of the failsafe limitation, and in particular, its refusal to construe the term is not turned on when signals from said sensors indicate either the absence of a vehicle battery or improper polarity connection as not having a temporal element.

[00:01:13] Speaker 04:
Let me start with the board's change in construction.

[00:01:17] Speaker 04:
In the institution decision in Appendix 532,

[00:01:21] Speaker 04:
The board said that Carcou had not made a sufficient showing that, quote, the power switch is turned on in response to a signal indicating presence of a vehicle battery, because in Richardson, quote, there is no awareness of whether a vehicle battery is connected.

[00:01:38] Speaker 04:
In the final written decision, however, the board protested and changed its mind and held that Richardson, in fact, had met that limitation, even though Richardson had no awareness of whether a battery was connected.

[00:01:51] Speaker 04:
The board of appendix 60 to 61 said it had not construed claim one in this fashion, even though it had done exactly that.

[00:01:59] Speaker 01:
Well, you say exactly that.

[00:02:00] Speaker 01:
They didn't say they were doing a claim construction in the institution decision, did they?

[00:02:05] Speaker 04:
Well, they had done exactly that, Your Honor.

[00:02:09] Speaker 04:
no co-headed in fact relied on that construction of this patent-owner response at appendix six fifty five and appendix six fifty nine and of course it had to have done a construction in that regard if they call it a claim construction call it a claim construction but of course that was that that had to have been the consequence because that was the reason

[00:02:28] Speaker 04:
that Richardson did not meet the language of the claim.

[00:02:32] Speaker 01:
Why shouldn't we just see this as the board over time came to a greater, obviously different, or at least slightly different, or arguably different understanding of Richardson and something they're permitted to do?

[00:02:48] Speaker 04:
The problem with that is, Your Honor, that it's not just a different understanding of Richardson, it's a different understanding of the claim.

[00:02:58] Speaker 04:
And the claim requires microprocessor knowledge.

[00:03:02] Speaker 04:
The microprocessor is the unit that has to have the knowledge.

[00:03:07] Speaker 04:
And that's what they said in the institution decision.

[00:03:11] Speaker 04:
And in fact, if you are to take a look at the institution decision before the language talking about Richardson at 532, where the awareness language is,

[00:03:28] Speaker 04:
You will see at page 526 of the institutional decision, the board says, talking strictly about the limitation in the patent, according to this limitation, the power switch can be turned on only in response to a signal indicating presence of a vehicle battery and a signal indicating proper polarity connection to that vehicle battery.

[00:03:53] Speaker 04:
And what the board then said is that Richardson does not show that.

[00:03:57] Speaker 04:
And the reason that Richardson doesn't show that is that Richardson doesn't tell you that there's a battery connected.

[00:04:05] Speaker 03:
But they ultimately concluded that it did because the voltage level tells you whether there's a battery.

[00:04:12] Speaker 04:
The voltage level told a person of ordinary skill that there was a battery.

[00:04:16] Speaker 04:
The voltage level didn't tell the microprocessor that there was a battery.

[00:04:20] Speaker 04:
And in fact, Richardson in two places says the contrary.

[00:04:24] Speaker 04:
Richardson at paragraph 41

[00:04:28] Speaker 04:
tells, in fact, let me help you by actually pointing you to the language.

[00:04:35] Speaker 04:
At paragraph 41 of Richardson, there is a teaching.

[00:04:40] Speaker 04:
Where are we?

[00:04:42] Speaker 04:
This is at appendix 1950 at paragraph 41.

[00:04:46] Speaker 04:
1915?

[00:04:46] Speaker 01:
1950.

[00:04:51] Speaker 04:
And this is one of the teachings of Richardson.

[00:04:56] Speaker 04:
And this is something that happens after the start button is pressed.

[00:05:01] Speaker 04:
This is after the jump start, after the charging is going on here.

[00:05:07] Speaker 04:
If the system detects an increase in the... So where are you reading on this page?

[00:05:10] Speaker 04:
This is at paragraph 41 at the bottom of the first column.

[00:05:15] Speaker 04:
If the system detects an increase in the difference between the measured jump starter battery voltage 20 and the voltage measured 30 across the contact relay 34 indicating

[00:05:26] Speaker 04:
that one of the jump-starter cables has been disconnected.

[00:05:30] Speaker 04:
So Richardson is telling you there about a battery not being connected.

[00:05:35] Speaker 04:
But that's happening after power is flowing.

[00:05:39] Speaker 04:
That's Richardson talking about a disconnected battery.

[00:05:42] Speaker 03:
But that's not what the board's relying on.

[00:05:46] Speaker 04:
Well, that's exactly right, because the board is talking about the step in figure five

[00:05:53] Speaker 04:
at step 252, which is a voltage detection, which is talking about a battery being present, not about a battery being absent.

[00:06:04] Speaker 04:
When Richard is talking about a battery being absent, it's talking about it at paragraph 41.

[00:06:08] Speaker 04:
And there's another place in Richardson that talks about a battery being absent.

[00:06:13] Speaker 04:
And let me show that to you also.

[00:06:15] Speaker 04:
So if you follow figure five at step 252,

[00:06:22] Speaker 04:
And the vehicle volts are shown to be within the correct range, and it says yes, and you follow it to E, that circle E, on Appendix 1942.

[00:06:31] Speaker 04:
And then you follow that to Figure 6, and then go to Step 258 for manual or automatic mode.

[00:06:43] Speaker 04:
That then takes you to Paragraph 49 on Appendix 1951.

[00:06:48] Speaker 04:
And that tells you that if you're in manual mode,

[00:06:52] Speaker 04:
the jump starter 10 may be used when the battery voltage of the vehicle is below 10 volts or if the vehicle's battery is not connected.

[00:07:06] Speaker 04:
That's telling you that you can use the jump starter when the vehicle battery is not connected.

[00:07:11] Speaker 04:
That's exactly the opposite of the failsafe mechanism of the 015 patent.

[00:07:19] Speaker 04:
So what we have here

[00:07:22] Speaker 04:
is a board that, in completely changing the construction, read a completely inapposite patent onto our patent and invalidated our patent.

[00:07:38] Speaker 04:
This was a violation of our APA rights, and at the very least, we're entitled to a remand on this.

[00:07:44] Speaker 04:
But we do think that we're entitled to reversal because there is no evidence that under a correct construction,

[00:07:51] Speaker 04:
that Richardson reads on our patent.

[00:07:55] Speaker 04:
If I can turn very quickly to the second issue here because I want to make sure to leave enough time to come back on rebuttal to answer their cross appeal as well, the Klein reference.

[00:08:08] Speaker 04:
Here the board misconstrued the failsafe limitation and basically read out the guts of our patent, read out the essential purpose of our patent.

[00:08:19] Speaker 04:
The board said

[00:08:21] Speaker 04:
that the fail-safe limitation was really just another side of the same coin and not a distinct determination from the trigger limitation.

[00:08:32] Speaker 04:
And they said that in Appendix 15.

[00:08:36] Speaker 04:
By doing that, the board read out the essential fail-safe limitation.

[00:08:43] Speaker 04:
And that was added, and that was necessary for purposes of patentability.

[00:08:47] Speaker 04:
It's even in the title of the patent.

[00:08:48] Speaker 04:
It's all over the specification.

[00:08:51] Speaker 04:
Now, why did this matter with respect to the way Klang was read on to this patent?

[00:08:55] Speaker 04:
Klang is an old 2002 patent for a commercial diagnostic unit that was used by battery retailers.

[00:09:04] Speaker 04:
And it was a, if you look at the schematic, the flow chart, that's an appendix 1962, but annotated at page 45 of our blue brief, it involves a series of steps that

[00:09:20] Speaker 04:
take a long period of time and the connection is made.

[00:09:23] Speaker 04:
But then there are a number of steps after steps 138 to 150 where the connection is made that are manually conducted by a human with the potential for delay, error, and change circumstances.

[00:09:38] Speaker 04:
Some of those steps include taking a temperature.

[00:09:41] Speaker 04:
This could be hours that take place.

[00:09:44] Speaker 04:
There could be a disconnection that takes place.

[00:09:47] Speaker 04:
And the starting takes place then.

[00:09:51] Speaker 04:
It could be minutes, hours.

[00:09:54] Speaker 04:
It could be started at the beginning of the day.

[00:09:56] Speaker 04:
And the starting could take place at the end of the day.

[00:09:59] Speaker 04:
And the board said that win didn't really mean win.

[00:10:03] Speaker 04:
And that was a construction error that read the failsafe limitation entirely out of this patent.

[00:10:09] Speaker 04:
And the board said, well, that's OK, because the 015 patent tolerates unplanned anomalies.

[00:10:17] Speaker 04:
Well, I'd submit to the court that unplanned anomalies are exactly what the failsafe limitation is designed to protect.

[00:10:26] Speaker 04:
The 015 patent says that inadvertent misconnections.

[00:10:30] Speaker 04:
Inadvertent, by the way, is another word for unplanned.

[00:10:34] Speaker 04:
Inadvertent misconnections, that's at A253, column one, line 16 to 23.

[00:10:39] Speaker 04:
and potential for malfunctions.

[00:10:42] Speaker 04:
That's an A254, column 3, line 10.

[00:10:45] Speaker 04:
That's exactly what the failsafe limitation is designed to protect against.

[00:10:49] Speaker 04:
It's not designed to be perfect, but it's designed to protect against potential shocks, obviously potential fatalities, serious problems.

[00:10:58] Speaker 04:
This is a safety mechanism.

[00:11:00] Speaker 04:
And when this construction is corrected, Karku has offered no argument

[00:11:05] Speaker 04:
that anything in clang satisfies the requirement that the power switch is not turned on when the signals indicate the absence of a battery or an improper polarity connection.

[00:11:17] Speaker 04:
Unless the court has further questions for me, I'll return on rebuttal on these two issues, as well as my response to their claim 11 arguments.

[00:11:25] Speaker 00:
We will save that time for you.

[00:11:26] Speaker 04:
Thank you, Your Honor.

[00:11:28] Speaker 00:
Mr. Petario?

[00:11:39] Speaker 02:
Thank you very much.

[00:11:41] Speaker 02:
May it please the court?

[00:11:42] Speaker 02:
My name is Kevin Patariou.

[00:11:43] Speaker 02:
I'm with Perkins Coie LLP here on behalf of the cross appellant Shenzhen Kargu.

[00:11:49] Speaker 02:
I think there's a few things to try to cover here with respect to what was said with respect to, let's start with Richardson.

[00:12:02] Speaker 02:
There was a statement that was made by NOCO's counsel that the microprocessor, the claim one requires microprocessor knowledge.

[00:12:11] Speaker 02:
I think we need to go back and take a look at what that limitation actually says.

[00:12:16] Speaker 02:
Limitation 1G says that the microcontroller has to be configured to receive signals from the sensors that

[00:12:31] Speaker 02:
receive input signals from said vehicle isolation sensor and said reverse polarity sensor such that and so that it responds to signals from the sensors indicating the presence of a vehicle battery at its set output port and the proper polarity connection or does not close a switch if the signals indicate a reverse polarity condition or lack of

[00:12:59] Speaker 02:
or lack of a battery connection.

[00:13:03] Speaker 02:
And so this issue of trying to add something about microprocessor knowledge is frankly a little bit confusing to me about, and it seems to be adding some requirements that are not found in the claim.

[00:13:20] Speaker 02:
The board did not change its claim construction.

[00:13:23] Speaker 02:
In the institution decision,

[00:13:25] Speaker 02:
followed a pretty formulaic way of laying out whether or not each limitation was met.

[00:13:33] Speaker 02:
First it looked at the claim language and then recited what would be required in order to find that the claim language was met and then proceeded to analyze the references.

[00:13:45] Speaker 03:
That's exactly what they did in the... Richardson itself doesn't disclose detecting battery absence, but it provides for detection of a voltage level which indicates battery absence.

[00:14:01] Speaker 03:
Is that fair?

[00:14:02] Speaker 02:
That's right.

[00:14:04] Speaker 02:
In short, Richardson is, in step 252, looking for a battery

[00:14:11] Speaker 02:
is looking for a battery within a particular voltage range that is selected by the user.

[00:14:17] Speaker 02:
For example, if the user selects to use a 12-volt battery with the device, it's looking for whether the voltage sensor 30 will return an indication that a battery

[00:14:29] Speaker 02:
Within that range is present and connected to the device.

[00:14:32] Speaker 02:
So what the board is doing is combining Richardson with the knowledge of someone skilled in the arc?

[00:14:37] Speaker 03:
Is that what happened?

[00:14:38] Speaker 02:
I don't think that's correct.

[00:14:41] Speaker 02:
The paragraph 34 is indicating that what is happening in step 252 is a test to determine if a battery of a certain voltage has been connected.

[00:14:52] Speaker 02:
So the reference itself through the circuit schematics, and this is undisputed by the

[00:14:59] Speaker 02:
by the testimony of both experts indicated that when no battery is connected.

[00:15:05] Speaker 02:
A voltage of approximately zero volts will be returned by the sensor.

[00:15:09] Speaker 02:
But Richardson doesn't say that, right?

[00:15:11] Speaker 03:
Well, through the circuit that is in there was... It provides the information, but Richardson doesn't say if the voltage is X level, that indicates the absence of a battery.

[00:15:25] Speaker 02:
That's correct.

[00:15:25] Speaker 03:
Not in text, but... You have to layer on to Richardson the knowledge of someone skilled with the art who would read that signal that way.

[00:15:33] Speaker 02:
who would understand the operation of the circuit and what it would output in both of those conditions.

[00:15:43] Speaker 02:
But our position is that that is disclosed by the reference itself through disclosure of the circuits with all the component values that are provided.

[00:15:54] Speaker 02:
But in terms of claim construction, what happened in Appendix 526 for an explanation of

[00:16:03] Speaker 02:
the limitation referring to the action of the claimed microcontroller where there's a statement that according to this limitation the power switch can be turned on only in response to a signal indicating the presence of a vehicle battery and a signal indicating proper polarity connection to the vehicle battery.

[00:16:20] Speaker 02:
If a signal indicates absence of a vehicle battery or if a signal indicates improper polarity connection to the vehicle battery the power switch cannot be turned on.

[00:16:28] Speaker 02:
That was in the institution decision.

[00:16:30] Speaker 02:
It's basically a restatement of the

[00:16:32] Speaker 02:
claim order and meaning of the claim limitation.

[00:16:35] Speaker 02:
And that same analysis or same summary of what that limitation required is repeated again in Appendix 56.

[00:16:44] Speaker 02:
So our position is that there was no change in the analysis of what is required in order to meet this limitation.

[00:16:54] Speaker 01:
Is there a change in how the board understood Richardson?

[00:16:58] Speaker 02:
I mean I think across the

[00:17:00] Speaker 02:
the entirety of this proceeding, there was development and understanding of Richardson.

[00:17:05] Speaker 02:
At the institution decision stage, there was a confusion about whether a voltage reading of the internal battery to show whether it was properly charged was a voltage reading of the vehicle battery and whether the shunt calibration routine was optional or mandatory.

[00:17:27] Speaker 02:
So I think the board's knowledge and understanding of this reference developed over the course of the trial with understanding of the full record and the full testimony of the experts that participated in the proceeding.

[00:17:44] Speaker 02:
And again, I think the evidence that was cited by the board, again, indicated that there is substantial evidence to show that this limitation was met, and specifically

[00:17:56] Speaker 02:
as we mentioned a few minutes ago, that if a zero-volt signal is received at the microcontroller, the reason that that would happen, as an example, one voltage that is outside the range is because the battery is disconnected.

[00:18:20] Speaker 02:
So the evidence that was cited by the board in its decision supported

[00:18:26] Speaker 02:
It's finding that Richardson met limitation 1G.

[00:18:32] Speaker 02:
Just briefly with respect to claim, the NOCO's counsel indicated that there was somehow a reading out or ignoring of a claim limitation in order for the board to reach its decision.

[00:18:51] Speaker 02:
And that's simply not supported by the prosecution history

[00:18:55] Speaker 02:
and how the board applied this reference.

[00:18:59] Speaker 02:
The reason the second half of limitation 1G was added was to traverse a reference that would correct a polarity connection when an incorrect polarity connection existed.

[00:19:17] Speaker 02:
So to traverse that reference, the applicant had to make it clear that

[00:19:25] Speaker 02:
in response or if there's a condition of a reverse priority connection that the switch would not close.

[00:19:32] Speaker 02:
And so that is the limitation that was added.

[00:19:36] Speaker 02:
The board didn't ignore this limitation in performing its analysis of whether Clang met all of the requirements of limitation 1G.

[00:19:49] Speaker 02:
Specifically, it looked at figure six of Clang and said, well, if you've reached a

[00:19:55] Speaker 02:
switch closure, it is because or in response to a determination that a battery has been connected and connected with correct polarity.

[00:20:03] Speaker 02:
If you haven't done that, it's because if you don't get there, it's because those conditions haven't been met.

[00:20:10] Speaker 02:
That's all the claim requires.

[00:20:12] Speaker 00:
You want to address your cross appeal?

[00:20:16] Speaker 02:
Yes.

[00:20:17] Speaker 02:
Let me turn to that now.

[00:20:19] Speaker 03:
As I understand what the board said, it refused to look at the response and the reply because it said that you hadn't made your case in the petition sufficiently, right?

[00:20:29] Speaker 02:
That's right.

[00:20:30] Speaker 03:
So tell us why you think you made the case sufficiently in the petition.

[00:20:35] Speaker 03:
So there's a lot more in the reply than there is in the petition.

[00:20:40] Speaker 02:
Uh, there is, but there's, uh, we do believe that, that there's, uh, that the evidence that was presented in the petition was really not completely analyzed by the board.

[00:20:50] Speaker 02:
Um, uh, either, either it was either the board imposed requirements that were, uh, not requirements to establish a prima facie case of obviousness or

[00:21:02] Speaker 02:
it misapprehended the evidence that was presented.

[00:21:06] Speaker 03:
The evidence that was presented was you could use a battery to charge another device, like a cell phone or something like that, but it doesn't show a USB port charging a battery, right?

[00:21:18] Speaker 02:
Well, the primary reference that was relied upon for that is an original exhibit 1012, which is reproduced at appendix 2-0,

[00:21:32] Speaker 02:
99 and that reference shows a USB charging output a charging cable and Where the other end of the cable is a micro USB port and that reference also explains in text that what?

[00:21:47] Speaker 02:
What the other end of the micro USB port can be connected to is to charge cell phones PDAs or other electronic devices right, but it doesn't show it going the other way to charge the battery and

[00:22:00] Speaker 02:
Well, I think a cell phone does have a battery.

[00:22:04] Speaker 02:
A PDA does have a battery.

[00:22:08] Speaker 02:
Providing power to charge other devices indicates that a battery is there.

[00:22:12] Speaker 02:
But I agree with you that it does not show a cable that connects to the input of the jump-starter device that is in the brochure.

[00:22:25] Speaker 02:
But the

[00:22:27] Speaker 02:
There are only really four statements, though, about the evidence that's cited there.

[00:22:33] Speaker 02:
And the issue, as Your Honor pointed out, that it's not a dispute over whether about the evidence presented by the patent owner or the evidence in reply is what did the board do in response to the evidence that the petitioner presented.

[00:22:50] Speaker 02:
And there's really four things that they said.

[00:22:54] Speaker 02:
First, at Appendix 93, they said Dr. Curtley doesn't identify a charger having a USB charging input port.

[00:23:01] Speaker 02:
But that's not, first of all, we just discussed why the reference discloses that.

[00:23:08] Speaker 02:
And the other issues, that's not really required for a prime face obviousness case.

[00:23:16] Speaker 02:
The other remaining sentences in Appendix 93 to 94 talk about explaining why USB

[00:23:24] Speaker 02:
apparently confuse the requirement about whether the claim requires somehow that the output ports that are disclosed also have an input charging functionality and then further go on to describe whether a charging source would be commonplace but charging source is not found in the claim and then finally

[00:23:55] Speaker 02:
Finally, there's a question about the last sentence that was there, and that's the entirety of the analysis, is whether a person of ordinary skill in the art would have difficulty in locating a suitable source or how common a USB port is as a use of a power input to devices.

[00:24:17] Speaker 02:
This is not really addressing the evidence, but it's asking that was presented and whether prima facie cases made, but it's asking

[00:24:24] Speaker 02:
It's asking for other or additional evidence instead of analyzing what was actually presented.

[00:24:31] Speaker 01:
So unless the... Was the theory in the petition that a person with skill in the R would find it obvious to use the same USB port that was already in the prior R to also be an input for charging?

[00:24:48] Speaker 01:
Or was it that the person with skill in the R would add another port to do what claim 11 adds?

[00:24:54] Speaker 02:
Both were presented so it either could be used as an alternative or in addition to and if it's in addition to then the issues of disadvantages of adding a USB port are obviated because there's another option.

[00:25:05] Speaker 01:
Do you contend that the board misunderstood that you presented I guess you would say both of those theories of obviousness?

[00:25:11] Speaker 02:
Among other issues I think that's correct.

[00:25:15] Speaker 01:
And do we have to find that to be an abuse of discretion?

[00:25:18] Speaker 02:
I think that the

[00:25:22] Speaker 02:
I think it's legal error to have not addressed whether a prima facie case was established.

[00:25:31] Speaker 02:
Unless the panel has any other questions, I'd like to reserve the balance of my time.

[00:25:37] Speaker 00:
We will save it.

[00:25:50] Speaker 04:
Thank you, your honor.

[00:25:51] Speaker 04:
With regard to Richardson, Judge Dyke, I think your questions to my friend teased out the fact that what the board did was did an obviousness analysis, not an anticipation analysis.

[00:26:04] Speaker 04:
They combined the knowledge of a person of ordinary skill with the voltage disclosure in the detecting step.

[00:26:15] Speaker 04:
There's no disclosure in Richardson of the absence of a battery in that step.

[00:26:23] Speaker 04:
My friend pointed to the portion of the final written decision where the board said that this was undisputed by the testimony of experts.

[00:26:31] Speaker 04:
The board did say that and of course that's true because we thought the issue was settled.

[00:26:38] Speaker 04:
That's the surprise that we had because of the board's change in construction.

[00:26:44] Speaker 04:
With regard to clang, my friend does not dispute that the board read win as having no temporal requirement.

[00:26:53] Speaker 04:
I'll leave the clang at that.

[00:26:54] Speaker 04:
With regard to the cross appeal, Judge Stark, there was no theory whatsoever put forth in the petition.

[00:27:04] Speaker 04:
There were

[00:27:05] Speaker 04:
four bare paragraphs in the petition that were identical to their experts declaration that's paragraphs 118 to 21 of the petition.

[00:27:16] Speaker 03:
The theory was that if you could use a USB connection to charge a battery in a peripheral device you could do the opposite and charge the battery in the other direction.

[00:27:31] Speaker 04:
The theory, such as it was, was that

[00:27:35] Speaker 04:
The adding a USB charging port would be, quote, readily apparent.

[00:27:40] Speaker 04:
And it would provide added convenience.

[00:27:42] Speaker 04:
That's it.

[00:27:43] Speaker 04:
That's all it says.

[00:27:45] Speaker 04:
There was no theory.

[00:27:46] Speaker 04:
There was no how it would be done.

[00:27:48] Speaker 03:
It does identify the fact that USB ports are used to charge peripheral devices, right?

[00:27:56] Speaker 04:
And they got Claim 10, which was a USB port in the device used to charge external devices.

[00:28:06] Speaker 04:
invalidated on that ground.

[00:28:08] Speaker 04:
Now, of course, if Richardson is turned around, Richardson was the combined reference for this one.

[00:28:14] Speaker 04:
Claim 11 is reversed regardless of the cross appeal.

[00:28:19] Speaker 04:
But the point is that their two combined references don't even combine to invalidate even if you could combine them.

[00:28:30] Speaker 04:
What the board said here is that the combination

[00:28:33] Speaker 04:
here, you don't even explain how you would do this.

[00:28:37] Speaker 04:
Putting a USB port in to charge the device itself, as opposed to putting the USB port in to charge other devices using the device, is a very different thing.

[00:28:46] Speaker 04:
There was no explanation of how to do that.

[00:28:49] Speaker 04:
And this court has said time and time again that conclusory statements with regard to obviousness are not enough to make a prima facie case.

[00:28:59] Speaker 04:
KSR itself held that rejections on obviousness grounds cannot be sustained by mere conclusory statements.

[00:29:06] Speaker 01:
Do we decide for ourselves if those are merely conclusory statements or do we give deference to the board about that?

[00:29:12] Speaker 04:
I mean, I think you should give deference to the board here.

[00:29:14] Speaker 04:
The board has a rule with regard to this.

[00:29:17] Speaker 04:
The board's application of its own rule here is entitled to a certain amount of deference,

[00:29:22] Speaker 04:
It really doesn't matter.

[00:29:24] Speaker 04:
This is as conclusory as anything I've ever seen with regard to making out a case of a prima facie case.

[00:29:29] Speaker 01:
Do the board here require in order to prove obviousness that a person of skill in the art could add the USB port without redesign or adaptation?

[00:29:42] Speaker 01:
And if the board did impose that requirement, that would be error, wouldn't it?

[00:29:46] Speaker 01:
Ask your question again without redesign or adaptation.

[00:29:51] Speaker 01:
I think one of the arguments is that the board raised the burden for obviousness to two greater level by requiring them to show that the USB port could do what the claim 11 requires but without redesign or adaptation.

[00:30:03] Speaker 04:
Well, I think the fact is that a USB port, you can't just slap a USB port onto a device and have it

[00:30:13] Speaker 04:
charge that device, especially if the USB port that's being offered from the

[00:30:18] Speaker 04:
A secondary reference here from the ePower reference is a port that is being used to do external charging.

[00:30:28] Speaker 04:
So there's really nothing there that tells you that you can add that port and charge the device itself.

[00:30:35] Speaker 04:
So I don't think that's any sort of error with regard to the board saying, gee, there's no circuitry that's disclosed in the ePower reference.

[00:30:45] Speaker 04:
to tell you that, gee, you can add this and charge the device itself using this USB port.

[00:30:51] Speaker 04:
So I don't think that's any kind of error whatsoever.

[00:30:53] Speaker 04:
So unless the court has further questions for me, we'll rest on the briefs and argue it already given.

[00:30:57] Speaker 00:
Thank you, counsel.

[00:31:00] Speaker 00:
Mr. Patario will give you two minutes for a bottle on the cross field.

[00:31:07] Speaker 02:
I think the issue is, you know, there were a lot of arguments by NOCO's counsel concerning just now about

[00:31:15] Speaker 02:
circuitry or perhaps compatibility with voltage levels.

[00:31:20] Speaker 02:
That was all evidence that the board said they expressly did not consider.

[00:31:25] Speaker 02:
So the focus here really needs to be on what evidence was actually provided.

[00:31:32] Speaker 02:
The statements that were supported by expert testimony where the expert wasn't criticized as being not an expert or not a person of ordinary skill in the order, not credible, indicated that

[00:31:44] Speaker 02:
adding a USB port would improve the convenience of the devices.

[00:31:57] Speaker 02:
And the primary reference is, again, claim 10 places a requirement that a USB output port is configured.

[00:32:05] Speaker 03:
Did the experts say that using a USB port for this purpose would work?

[00:32:12] Speaker 02:
I think that's really the upshot of his opinion.

[00:32:16] Speaker 02:
Did he say that explicitly?

[00:32:19] Speaker 02:
In terms of his actual final statement about this, he indicated that cell phones were an example.

[00:32:35] Speaker 02:
I mean, I think in his explanation of this, he's indicating that it is possible to do this.

[00:32:42] Speaker 02:
But I'm not sure if that directly answers your question.

[00:32:45] Speaker 03:
What did he say about whether it's possible to do this?

[00:32:54] Speaker 02:
He stated that adding a USB port would... Sorry, I'll just pull this back up.

[00:33:07] Speaker 03:
Because that seems to be the crux of the later dispute between the response and the reply, is whether it's possible to do this.

[00:33:16] Speaker 02:
Yeah, so his opinion was that it would be readily apparent from the references that a USB port, which is simply a different physical plug and socket combination, could also be incorporated into portable jump starters.

[00:33:30] Speaker 02:
in addition to or in place of the 14 volt 1N input port, which I think is what Judge Stark was asking about before.

[00:33:38] Speaker 02:
And a person of ordinary skill will be motivated to provide that to add convenience to the users of adding another commonly used power input.

[00:33:46] Speaker 02:
So I think the emphasis in the expert's opinion is this is a commonplace charging input.

[00:33:52] Speaker 02:
And there's no dispute that the references disclosed were jump starter devices with a charging input.

[00:34:00] Speaker 02:
uh... the only week here or if there is any is that that important for his u.s.p.

[00:34:06] Speaker 00:
instead of uh... instead of the uh... of a fourteen-ball barrel connected thank you counsel you both arguments in the case is submitted