[00:00:00] Speaker 00:
And in a final case this morning, it's on December 24, 1420.

[00:00:05] Speaker 00:
I would think that it was a couple of days ago.

[00:00:10] Speaker 00:
OK, Mr. Bradley.

[00:00:12] Speaker 05:
May it please the court.

[00:00:13] Speaker 05:
The patent trial on appeal board over a series of four final written decisions, spanning hundreds of pages, got a lot of things right.

[00:00:21] Speaker 05:
But there are three discrete issues that warrant this court's attention.

[00:00:25] Speaker 05:
The first one is on conception, and specifically the corroboration

[00:00:30] Speaker 05:
of one of the three inventors' conception testimony that served to remove two of our pieces of prior art as prior art.

[00:00:38] Speaker 05:
We'll talk about that.

[00:00:39] Speaker 05:
The other two issues are related.

[00:00:41] Speaker 05:
They deal with obviousness grounds that we presented where the board, in assessing a particular limitation, would not consider our obviousness position because they said it wasn't raised.

[00:00:53] Speaker 05:
I want to start first with the conception and corroboration.

[00:00:57] Speaker 05:
Mr. Nguyen is one of the three inventors.

[00:00:59] Speaker 05:
He and only he came into the board and provided testimony on conception.

[00:01:05] Speaker 05:
The only corroborating evidence that was presented supporting his testimony were a series of December 2003 drawings and an April 2004 prototype.

[00:01:18] Speaker 05:
The board found correctly that the April 2004 prototype did not embody the invention.

[00:01:23] Speaker 05:
It was not corroborating.

[00:01:24] Speaker 05:
As to the set of drawings,

[00:01:27] Speaker 05:
Only one of those drawings showed a complete container.

[00:01:30] Speaker 05:
These claims are directed to a container with two composite shelves and a VIP back-end insulated panel in between them.

[00:01:38] Speaker 05:
and the December 2003 complete container drawing did not embody the invention.

[00:01:44] Speaker 02:
Do I remember correctly though that the person who created those CAD drawings testified that all of the drawings showed the same product and they were all something that even though there was only one

[00:01:59] Speaker 02:
I think it's the last one, that shows the entire container.

[00:02:04] Speaker 02:
They all went together to show the container.

[00:02:07] Speaker 05:
His testimony was for purposes of authenticating the documents as documents created at the time in December 2003.

[00:02:15] Speaker 05:
And the only testimony about what the documents showed was the testimony from Mr. Nguyen,

[00:02:24] Speaker 05:
corroborated, not corroborated, but authenticated by Mr. Bowles, the gentleman to whom you're speaking now.

[00:02:31] Speaker 05:
But the only evidence of those drawings was that the complete drawing, the board never found that it embodied the invention and it doesn't.

[00:02:38] Speaker 05:
The only drawings that the board relied on were of a single panel assembly, not even a full shell.

[00:02:48] Speaker 05:
7182 is the layout drawing, and then some pages before that are the panel drawings that the floor relied on.

[00:02:55] Speaker 05:
7160 is the overall panel, and then there were three other drawings that relied on floor drawings relating to a pallet shipper project, not the container, and it didn't have the full invention.

[00:03:08] Speaker 05:
The conception requirement in this court's well-established law

[00:03:12] Speaker 05:
requires a definite and permanent idea.

[00:03:15] Speaker 00:
But I'm not understanding.

[00:03:16] Speaker 00:
If there's an overall drawing, and then there are drawings that describe subsets, portions of the overall drawing, and using the subset drawings together with the overall drawing is what the board said corroborated the conception testimony, right?

[00:03:36] Speaker 05:
The board should not rely on the overall drawing, what's called the layout drawing.

[00:03:40] Speaker 05:
The board does not rely on that, and the evidence, our view, does not show that those individual panel drawings... Yeah, I don't think they're contesting that.

[00:03:48] Speaker 00:
So, but they're saying that the individual drawings, considered to be subsets of the overall, do provide corroboration, right?

[00:03:57] Speaker 05:
The board did say that.

[00:03:59] Speaker 05:
The problem with the board's analysis is that conception requires a complete and operative invention as it's hereafter applied in practice.

[00:04:07] Speaker 02:
But isn't the...

[00:04:09] Speaker 02:
conception evidence from the testimony, and it's then corroborated by the drawings and other testimonies.

[00:04:18] Speaker 02:
So the question is, under the rule of reason, just let's take a break for a minute.

[00:04:24] Speaker 02:
Could you tell the students in the classroom why we're talking about corroboration and what it is?

[00:04:28] Speaker 05:
Yes, I'd be glad to, and I'll continue to fix this way.

[00:04:32] Speaker 05:
So when you have prior art,

[00:04:35] Speaker 05:
Sometimes an inventor will try to remove those as prior art by saying, well, I invented my invention before those prior art references, meaning they're not prior art.

[00:04:45] Speaker 05:
But an inventor can't just come in and say, I did it, because that doesn't have hallmarks of trustworthiness.

[00:04:52] Speaker 05:
And so you need corroboration from other evidence.

[00:04:55] Speaker 05:
The corroborating evidence is analyzed under a rule of reason, as Judge Stoltz just mentioned.

[00:05:00] Speaker 05:
And if it's corroborated, that there's an earlier conception evidence corroborated

[00:05:05] Speaker 05:
then indeed those later references will not be prior art.

[00:05:08] Speaker 05:
And here our argument is that the conception requires the complete and operative invention.

[00:05:14] Speaker 05:
The corroboration needs to be of the complete and operative invention, not one snippet of it.

[00:05:21] Speaker 02:
So thank you for that explanation.

[00:05:25] Speaker 02:
So in this case, we've got the inventor saying, here, I invented this well before the priority date of the prior earth.

[00:05:35] Speaker 02:
I'm looking, and I, here's, you know, I remember I made it.

[00:05:39] Speaker 02:
This is what I conceived of it.

[00:05:41] Speaker 02:
And it was the complete invention.

[00:05:43] Speaker 02:
And then there's some drawings that corroborate

[00:05:46] Speaker 02:
his testimony.

[00:05:48] Speaker 02:
They don't, in and of themselves, have to demonstrate the entire conception, do they?

[00:05:53] Speaker 02:
They just have to be sufficient to satisfy the indicia of trustworthiness of his testimony, right?

[00:06:02] Speaker 05:
The problem with the evidence presented here

[00:06:05] Speaker 05:
is when you look at the other evidence that was presented around the same time and in the months to follow, which were months after that publication and the prior art meeting too late, those documents make clear

[00:06:18] Speaker 05:
that the invention was not yet solidified.

[00:06:21] Speaker 05:
They are anti-corroborative.

[00:06:22] Speaker 05:
They show the opposite.

[00:06:23] Speaker 02:
So offices later, there was a prototype made that didn't have all the elements of the claim.

[00:06:28] Speaker 02:
That is something that detracts from his testimony.

[00:06:31] Speaker 02:
But isn't that a credibility issue?

[00:06:33] Speaker 05:
Well, there's more, because there's also a memo that's after the key date for the prior references.

[00:06:41] Speaker 05:
And the memo only lists a single shell, not the two shells that are required by the claims.

[00:06:48] Speaker 05:
The drawing of the full invention with the two composite shells and the VIP insulation layer in between them did not occur until January of 2005.

[00:06:58] Speaker 03:
Well, if we had the drawing with everything in it prior to the date that it's needed for, we wouldn't need the testimony or anything.

[00:07:08] Speaker 03:
It would be prior art.

[00:07:10] Speaker 03:
So the point of the rule of reason is just, is there sufficient evidence to think what the inventor said is correct?

[00:07:17] Speaker 03:
And I know you're saying, well, there is other evidence that suggests he's not.

[00:07:21] Speaker 03:
That's a substantial evidence question, though, right?

[00:07:24] Speaker 05:
I think that is a substantial evidence question.

[00:07:25] Speaker 03:
And the board pointed to these other drawings and said, looking at them in context, these are evidence.

[00:07:32] Speaker 03:
to support his testimony.

[00:07:34] Speaker 03:
And if that's evidence, and it is, how can we reverse on a substantial evidence ground?

[00:07:39] Speaker 03:
There's some evidence for one side.

[00:07:42] Speaker 03:
You said there's some evidence for you.

[00:07:45] Speaker 05:
Under the law, when the conception requires the complete and operative invention as it's hereafter applied in practice, our position is, under the law, the corroboration needs to be of the complete and operative invention and not one snippet of it.

[00:07:59] Speaker 02:
I do want to.

[00:08:08] Speaker 05:
And analyzing the corroborative evidence says the corroborative evidence must corroborate the conception of the complete doctrine of invention, not one piece of it.

[00:08:18] Speaker 02:
I do have the rule of reason, which is just looking at it more broadly than that and looking to see whether there's a not-corroboration to show that, to support his view of the facts, why isn't that enough?

[00:08:33] Speaker 02:
It doesn't have to be each and every element.

[00:08:36] Speaker 05:
Our position, it needs to be more than

[00:08:39] Speaker 05:
It wasn't even a full box like Shell, like the Granger requires.

[00:08:42] Speaker 05:
It's one portion of a panel.

[00:08:44] Speaker 05:
And it's our position that it's not enough.

[00:08:47] Speaker 05:
I do want to turn to our other two appellate issues, which are related.

[00:08:51] Speaker 05:
And these are ones where Deal with this Sinclair priority preference and the Zucanchik priority preference.

[00:08:59] Speaker 05:
Our grounds of unpatentability dealt with obviousness.

[00:09:03] Speaker 05:
It was only obviousness for these grounds.

[00:09:07] Speaker 05:
Well, let me back up.

[00:09:09] Speaker 05:
In our petitions, we said the prior art teaches X. I'm out of time to explain.

[00:09:15] Speaker 05:
I'm happy to dig into it.

[00:09:16] Speaker 05:
The prior art teaches X. C-SAFE in response came in and said, no, it doesn't teach it.

[00:09:22] Speaker 05:
In reply, we said, well, it does teach it.

[00:09:27] Speaker 05:
You're wrong.

[00:09:28] Speaker 05:
But even if it doesn't teach it, it would have been not reached to a person's skill in the art.

[00:09:31] Speaker 05:
Our ground unpackability is obviousness.

[00:09:34] Speaker 05:
We say it teaches directly.

[00:09:36] Speaker 05:
You disagree.

[00:09:37] Speaker 05:
Our reply briefly say, pointing to the exact same portions of the reference, you're wrong.

[00:09:43] Speaker 05:
It does teach it.

[00:09:44] Speaker 05:
In any event, it's obviousness.

[00:09:47] Speaker 05:
But the board in both instances, for the Sinclair grounds and the Zupicic grounds, said, we're not going to let you present an obviousness argument.

[00:09:55] Speaker 05:
That's a new argument.

[00:09:57] Speaker 05:
That was wrong.

[00:09:58] Speaker 05:
As a matter of law, the board only considered our obviousness argument as if it were anticipation.

[00:10:05] Speaker 05:
But the ground was obviousness.

[00:10:07] Speaker 05:
And so the board, this board should remand for the board to consider both our synchronic grounds and our synchronic ground because us saying that the reference teaches X certainly subsumes

[00:10:23] Speaker 05:
obviousness when the entire ground of unpackability is obviousness.

[00:10:26] Speaker 02:
Can I ask you a question?

[00:10:27] Speaker 02:
Yes.

[00:10:27] Speaker 02:
Are you emphasizing the use of the word teachers?

[00:10:30] Speaker 02:
Do you see a difference between teachers and discloses?

[00:10:33] Speaker 05:
Not only because the board used the word teachers, and I believe the petition used the word teachers, discloses teachers, and this context I think doesn't make a difference.

[00:10:42] Speaker 05:
I'm just using the word the board used.

[00:10:44] Speaker 02:
And so instead you're arguing is that because it was obviousness,

[00:10:48] Speaker 02:
person reading your petition should have known that you were saying it teaches it, or if it doesn't, it would have been obvious to my mind for each and every element.

[00:10:57] Speaker 05:
For the one in particular that the board refused to consider, yes.

[00:11:00] Speaker 02:
There's other elements where you said that the player or single reference taught it in your accommodation.

[00:11:06] Speaker 02:
And so they'd have to make that presumption for all of those as well.

[00:11:09] Speaker 05:
Yes.

[00:11:10] Speaker 05:
Yes.

[00:11:11] Speaker 05:
In this instance, with both the Zupenski grounds and the Sinclair grounds, it was just one element that tripped up the board.

[00:11:17] Speaker 05:
But this court should remand for them to actually consider our obviousness ground under those two references.

[00:11:23] Speaker 05:
I'm into my rebuttal.

[00:11:24] Speaker 05:
I'd like to reserve that.

[00:11:25] Speaker 05:
I'm happy to answer any further questions.

[00:11:27] Speaker 00:
OK, you can reserve it.

[00:11:31] Speaker 00:
Thank you.

[00:11:42] Speaker 04:
Mr. Cunningham.

[00:11:42] Speaker 04:
Good morning, Honors.

[00:11:43] Speaker 04:
Robert Cunningham, End of the West, on behalf of C-SAFE.

[00:11:47] Speaker 04:
Respectfully, counsel on the other side said there are three issues for the panel's attention.

[00:11:55] Speaker 04:
issues that we raise on that front.

[00:11:58] Speaker 04:
On the issue of refrigeration system in the proper claim construction, as this court rightly pointed out in the Columbia University case, the only meaning that matters in claim construction is the meaning and the context of the patent.

[00:12:12] Speaker 04:
Here we have a patent that every single time the claim term refrigeration or refrigeration system.

[00:12:19] Speaker 00:
I remember when we said it incorporated other references which talked about passive refrigeration.

[00:12:28] Speaker 04:
When you look at incorporation by reference, you have to pay attention to why it's being incorporated.

[00:12:33] Speaker 04:
Because incorporation by reference does not change the invention of the prior art into the invention of the pattern at sea.

[00:12:41] Speaker 04:
And so when we look at what the pattern says,

[00:12:44] Speaker 04:
Those incorporations by reference are in the background of the invention, the very first paragraph.

[00:12:48] Speaker 04:
And it says, there are temperature-controlled containers in the prior art, such as these incorporated by reference.

[00:12:54] Speaker 04:
And it's desirable that they have heating and or cooling needs.

[00:12:59] Speaker 04:
It does not use the term refrigeration system.

[00:13:01] Speaker 04:
It does not endorse those containers as teaching what refrigeration systems are.

[00:13:07] Speaker 04:
Instead, as it continues, continuing in the background and then in the summary,

[00:13:11] Speaker 04:
is it talks about how there is a need for tighter temperature control.

[00:13:15] Speaker 04:
And that's what the invention is about, having a nice tight temperature control range so that you can ship vaccines and biologics around the world.

[00:13:23] Speaker 04:
And what the patent talks about in the summary and in the background is active compressor-based refrigeration systems.

[00:13:33] Speaker 04:
In the reply papers, for example, EnviroTainer points out that there are advantages

[00:13:39] Speaker 04:
They say one of them is only that there is this specific structural insulation concept.

[00:13:46] Speaker 04:
They point to column 70 by a pattern.

[00:13:49] Speaker 04:
If you read what's written there, it's clear that the purpose of that beneficial design is to allow for a better refrigeration system.

[00:13:58] Speaker 04:
It talks about how it allows the preservation of battery life to power the compressor, which is part of refrigeration.

[00:14:06] Speaker 04:
At the end of the day,

[00:14:07] Speaker 04:
The only type of refrigeration system or cooling means that is actually discussed in detail in this patent are active systems.

[00:14:15] Speaker 00:
So under Colombian... Let me just say it again and again, the fact that the embodiments are limited in that particular respect doesn't mean that the claim is limited to the embodiments.

[00:14:26] Speaker 04:
That is absolutely correct, Your Honor.

[00:14:27] Speaker 04:
But that's not what we're dealing with here.

[00:14:29] Speaker 04:
This is not a single embodiment being incorporated into the claims.

[00:14:33] Speaker 04:
This is a patent telling you that our invention is about temperature-controlled containers that use active refrigeration systems.

[00:14:42] Speaker 04:
That's what this patent is all about.

[00:14:47] Speaker 04:
Your Honor, I'd like to turn to the Loeffler grounds.

[00:14:50] Speaker 04:
So there are three issues that require reversal.

[00:14:53] Speaker 04:
The issue of shells.

[00:14:55] Speaker 04:
motivation to combine, and reasonable expectation of success.

[00:14:59] Speaker 04:
On the question of shells, the dispositive question is whether Woffler's foam insulation, which it calls a shell, is the same as what the claims call a shell.

[00:15:11] Speaker 04:
And when we look at the claims, what they require is an inner shell, an outer shell, and then insulation confined between them.

[00:15:19] Speaker 04:
In Woffler, what it uses is

[00:15:21] Speaker 04:
the term shell to refer to the insulation itself.

[00:15:24] Speaker 04:
And then it confines that insulation with what it calls casings.

[00:15:28] Speaker 04:
So we have a situation where the term shell is being used to describe two fundamentally different things.

[00:15:37] Speaker 04:
And the claims of the patents ensue make it very clear that the shell is not the insulation.

[00:15:44] Speaker 04:
It's the thing confining it, or the things confining it.

[00:15:47] Speaker 02:
Do I remember correctly that Woffler itself has a paragraph where it says you could get rid of the two walls into which the insulation is actually molded, that that could stand on its own?

[00:16:00] Speaker 02:
In other words, the shell and Woffler can stand on its own without any additional structure.

[00:16:06] Speaker 04:
I don't recall that passage from Woffler, Your Honor.

[00:16:11] Speaker 04:
I don't believe that's an argument that I've heard raised in the course of this proceeding, either below or on appeal.

[00:16:17] Speaker 04:
So I don't believe that is the case.

[00:16:19] Speaker 04:
I think what you might be referring to, Your Honor, is in their reply papers, they mentioned the Sinclair reference, which talks about using insulation in a structural capacity.

[00:16:29] Speaker 04:
But I don't believe Walker itself tells us that.

[00:16:37] Speaker 04:
On the issue of motivation to combine, what we have in reasonable expectation of success is that I want to set aside the- Can I read it to you?

[00:16:50] Speaker 02:
I actually don't have it.

[00:16:51] Speaker 02:
It's at page, and maybe you could explain to me how I'm misunderstanding it.

[00:16:55] Speaker 02:
It's at page A 3400, and it says, it would be possible to dispense with the inner and or outer cover 2B2C by expanding the housing in an appropriate mold.

[00:17:07] Speaker 02:
The housing, maybe that's not it.

[00:17:10] Speaker 02:
But element 2A standing on its own.

[00:17:24] Speaker 04:
I'm sorry, my copy here does not have the appendix.

[00:17:26] Speaker 04:
Do you have the WO site at the top of the page?

[00:17:29] Speaker 02:
That's all right.

[00:17:29] Speaker 02:
I think I might have pointed to the wrong thing.

[00:17:32] Speaker 02:
I will turn you to it if I find the right one.

[00:17:36] Speaker 04:
Thank you.

[00:17:37] Speaker 04:
Okay, I do think that the motivation to combine unreasonable expectation of success issue, I want to set aside for the moment the confusion about what it is that the petitioner argued that the combination is.

[00:17:58] Speaker 04:
Because what they made clear at this point is that the combination is law floor covers, one omishi panel that is complete, a VIP, and then a second omishi panel inside the second law floor cover.

[00:18:10] Speaker 04:
So they've acknowledged that it is a system where there are six covers and three layers of insulation.

[00:18:16] Speaker 04:
We put an image of this at page six of our server plan.

[00:18:20] Speaker 04:
On the motivation to combine questions,

[00:18:22] Speaker 04:
What they are suggesting is that their combination has two onishi panels, and fundamentally what onishi tells us is that its panels are individually structurally complete.

[00:18:32] Speaker 04:
There is no reason to put the two of them next to each other.

[00:18:36] Speaker 04:
In the motivation to combine section of their petition,

[00:18:39] Speaker 04:
They never suggest or acknowledge that there would be any benefit or that there's any reason to put the two of them together.

[00:18:47] Speaker 04:
And then when they do their claim analysis, they avoid this issue by looking at each claim element individually.

[00:18:53] Speaker 04:
They say in claim element 1A, your record is a shell.

[00:18:57] Speaker 04:
You put it in an energy panel.

[00:18:59] Speaker 04:
In element 1B, your record is a second shell.

[00:19:01] Speaker 04:
You put it in a panel.

[00:19:02] Speaker 04:
But they never addressed why there would be a reason to have two.

[00:19:05] Speaker 04:
And in fact, Onishi tells us there is no reason to have two.

[00:19:09] Speaker 04:
So in our view, that shows very clearly there is no substantial evidence for motivation to come out.

[00:19:14] Speaker 04:
On reasonable expectation of success, they have been steadfast that the manufacturing process of Waffler is what would be maintained and what would be used in their combination.

[00:19:25] Speaker 04:
And what Waffler tells us the manufacturing process is, is you have two casings.

[00:19:30] Speaker 04:
you expand foam into the gap between them.

[00:19:33] Speaker 04:
You then move one of the casings to create a second gap, and you expand foam in again.

[00:19:38] Speaker 04:
They never explain to us, in the one or two sentences in the petition or in the supporting expert declaration, how that process can be applied to a structurally complete panel, especially a structurally complete panel that uses a resin process that is sticky and doesn't allow for further expansion.

[00:19:55] Speaker 04:
So it's just an open question, and the petition makes no attempt to answer that question.

[00:20:01] Speaker 04:
Now, the board's findings on these issues, this is where the confusion part comes in.

[00:20:07] Speaker 04:
The board's findings on motivation to combine is where the board consistently uses the term FRPs as opposed to FRP panels.

[00:20:16] Speaker 04:
And I would direct, Your Honors, in particular, to appendix page 295 in the board's decision where they say in the first part of the paragraph,

[00:20:27] Speaker 04:
They criticize our characterization as we say, we believe patterners talk about design that quote, includes FRPs on the outside and decor made of foam material.

[00:20:38] Speaker 04:
Fundamentally, that is an Amishi panel.

[00:20:40] Speaker 04:
FRP skin on the outside, foam in the middle.

[00:20:43] Speaker 04:
And then they say, which differs from petitioners proposed combination that replaces Woffler's dual shelves with FRPs.

[00:20:53] Speaker 04:
So in the same sentence, they're using the term FRPs to distinguish what the environment has now made very clear their argument is to a panel, plus a panel, to now say, no, in this situation, we're talking about just the skins.

[00:21:08] Speaker 04:
And the reason that I bring that up, Your Honors, is not because you need to actually decide that issue and whether the board understand it or not.

[00:21:15] Speaker 04:
I bring it up because there's no reason to give any weight or credibility to the board's motivation to design, motivation to confine decision, because they fundamentally changed what the combination was.

[00:21:28] Speaker 04:
Your Honours, I believe I have reserved three minutes, so I'd just like to briefly touch on the conception and Sinclair and Dupontius issues.

[00:21:36] Speaker 04:
On the conception question,

[00:21:38] Speaker 04:
Every factual issue that was raised by the council on the other side was directly addressed by the board.

[00:21:44] Speaker 04:
The board sent over six or seven pages going through the substance of the conception decision, recognizing that this question of two shells was the core dispute between the parties.

[00:21:54] Speaker 04:
This notion of anti-corroboration

[00:21:57] Speaker 04:
flies in the face of decades of law on the rule of reason and what corroboration requires.

[00:22:03] Speaker 04:
As Your Honors pointed out, corroboration is not required showing every single claim element.

[00:22:08] Speaker 04:
It requires assessing the credibility of the inventor's testimony.

[00:22:12] Speaker 04:
And here, we have inventor testimony corroborated by 23 contemporaneous documents, including eight that go to the exact issue in question, the two shell exam.

[00:22:24] Speaker 04:
The Sinclair and Zucantich issues

[00:22:26] Speaker 04:
Your counsel directly acknowledged, and Your Honor, you hit on the key question there.

[00:22:34] Speaker 04:
In their petition, they said teach.

[00:22:36] Speaker 04:
Then in a reply, they said teach or, well, maybe obvious to modify.

[00:22:40] Speaker 04:
At the end of the day, though, it's the board's discretion to look at the petition and what it teaches and then decide whether they made that argument or not.

[00:22:48] Speaker 04:
That is an abusive discretion standard.

[00:22:50] Speaker 04:
Here, there is no indication that that discretion was abused.

[00:22:57] Speaker 04:
I would also just like to point out on the zoo pantrich in St.

[00:23:00] Speaker 04:
Clair that even taking their argument as it stands today, as we understand it, there's no substantial evidence to find the obviousness on these grounds.

[00:23:12] Speaker 04:
Because in the St.

[00:23:13] Speaker 04:
Clair reference, they concede as they must that the two casings are separate embodiments.

[00:23:19] Speaker 04:
One embodiment has an inner casing, one has an outer casing.

[00:23:22] Speaker 02:
Are you addressing the obviousness argument that the board did not address?

[00:23:26] Speaker 04:
I'm addressing the one that they put into their papers.

[00:23:30] Speaker 02:
We cannot decide that in the first instance, can we?

[00:23:33] Speaker 02:
Because we are not fact-finders.

[00:23:35] Speaker 02:
That would be something that we would have to remand to the board to decide.

[00:23:38] Speaker 02:
Is that right?

[00:23:39] Speaker 04:
Absolutely agree with you, Your Honor.

[00:23:41] Speaker 04:
And I don't, so I won't even suggest.

[00:23:45] Speaker 04:
If there are no further questions, thank you very much for your time.

[00:23:49] Speaker 00:
OK.

[00:23:49] Speaker 00:
Mr. Bradley.

[00:23:59] Speaker 05:
Very quickly, counsel said there's no abuse of discretion in the board's treatment of our Sinclair and Zupanchuk obviousness grounds.

[00:24:09] Speaker 05:
The board's refusal to address obviousness when our grounds are obviousness, because the board said we did not address obviousness, makes no sense.

[00:24:19] Speaker 05:
It's abuse of discretion and is of course for man for the board to consider the Sinclair grounds and the Zupanchuk grounds.

[00:24:26] Speaker 05:
Now on their appeal,

[00:24:27] Speaker 05:
They led with the argument of the refrigeration system.

[00:24:30] Speaker 05:
They did not invent a refrigeration system for shipping containers or otherwise.

[00:24:35] Speaker 05:
And as some of the questions indicated to me, the examples they give from the specification are mere examples, preferably in this embodiment, that sort of thing.

[00:24:47] Speaker 05:
There's no statement of the invention is.

[00:24:50] Speaker 05:
where sometimes words like that can make a difference.

[00:24:54] Speaker 05:
And as Judge White commented, the incorporated by reference Broussard patent was part of the intrinsic record.

[00:25:02] Speaker 05:
It discloses passive refrigeration systems using carbon dioxide, dry ice, things like that.

[00:25:09] Speaker 05:
Their refrigeration system of claim construction argument should be rejected.

[00:25:14] Speaker 05:
The board got it exactly right.

[00:25:16] Speaker 05:
As for Loftler, Judge Stone, you had it right.

[00:25:20] Speaker 05:
on APX 3400, these, so Loftware has two foam shells with a VIP installation in between them.

[00:25:29] Speaker 05:
Loftware had everything we needed for the claims.

[00:25:32] Speaker 05:
The only difference was Loftware's structural shells, they were composite, and the claims say composite, so we used a v-sheet panels to upgrade or modify the Loftware shells to make them composite.

[00:25:47] Speaker 05:
It was as simple as that.

[00:25:48] Speaker 02:
Do I understand correctly that they're talking about

[00:25:53] Speaker 02:
Is that clear?

[00:25:54] Speaker 05:
Part of it, part of what's going on in Loftware, but the part that matters here, and as the board found, supported by substantial evidence, is that Loftware has two shells with a VIP layer in between them, just like the claims require.

[00:26:08] Speaker 05:
It's a cargo container, no doubt about any of this stuff.

[00:26:13] Speaker 05:
The challenge with the Loftware, if there was one, was it wasn't a composite.

[00:26:17] Speaker 05:
So we used the Onishi panels to upgrade the Loftware shells.

[00:26:23] Speaker 05:
The Loftware shells, to your honor, just goes to point, are indeed structural.

[00:26:28] Speaker 05:
And the APTX 3400 is where Loftware itself says so.

[00:26:33] Speaker 01:
Is that where it says it could remove that covers 2B and 2C?

[00:26:38] Speaker 05:
It does.

[00:26:39] Speaker 05:
And it goes on to say that.

[00:26:41] Speaker 05:
This housing is preferably designed as an expanded single shell.

[00:26:47] Speaker 05:
On the previous page, it talks about instead using two shells.

[00:26:50] Speaker 05:
But it goes on to say, and do it in such a way that the housing is inherently stable without additional structural elements, i.e.

[00:26:59] Speaker 05:
is designed as a self-supporting structure, which means that the loftwork shells surrounding the VIP insulation layer

[00:27:10] Speaker 05:
are themselves structural.

[00:27:12] Speaker 05:
We used the Onishi panels, which have composite, to upgrade the law for shells.

[00:27:19] Speaker 05:
It was as simple as that.

[00:27:21] Speaker 05:
As for motivation to combine and reasonable expectation of success, substantial evidence clearly supports the board's findings.

[00:27:29] Speaker 05:
The main thing you need to read is at HPX 296 to 297, where the board said, we find petitioners stated the advantage of Onishi's panels.

[00:27:40] Speaker 05:
in the law force walls, largely unrebutted and persuasive.

[00:27:45] Speaker 05:
Our expert talked about, in his declaration, about how combining the law force with Onishi achieves reinforcements, stability, higher strength, so on and so forth.

[00:27:56] Speaker 05:
I'm not telling that it's absolutely supported by substantial evidence.

[00:28:00] Speaker 00:
Okay, thank you.

[00:28:02] Speaker 00:
Mr. Cunahan?

[00:28:20] Speaker 04:
So, Your Honor, just very briefly on the Woffler.

[00:28:35] Speaker 04:
Your counsel framed it as something like, it was very simple.

[00:28:39] Speaker 04:
We took Woffler and we introduced the Onishi FRP.

[00:28:46] Speaker 04:
That's at least what I heard.

[00:28:48] Speaker 04:
That's different than what they argued.

[00:28:51] Speaker 04:
argued the entire panel.

[00:28:53] Speaker 04:
The entire panel is a multi-layered design.

[00:28:58] Speaker 04:
On the issue of the board's decision on reasonable expectations of success and motivation to combine, I would highly encourage the panel to go back and look at the petition and the supporting expert declaration regarding what was said.

[00:29:13] Speaker 04:
There is a paragraph talking generally about the benefits of skins, the skins being lighter and more robust than was used in Woffler.

[00:29:21] Speaker 04:
There is a discussion of panels generally being better, that the Onishi panels generally being better than the Woffler

[00:29:28] Speaker 04:
And then there is this conclusory sentence saying, it would have been, quote, often you would not be particularly difficult to apply to Woffler.

[00:29:38] Speaker 04:
That's the extent of the analysis.

[00:29:41] Speaker 04:
None of that addresses why you have two panels.

[00:29:44] Speaker 04:
None of that addresses how you can take the Woffler process and apply it to the ownership panel.

[00:29:53] Speaker 00:
Thank you very much for your time.

[00:29:55] Speaker 00:
I very much appreciate it.

[00:29:56] Speaker 00:
Great.

[00:29:56] Speaker 00:
Thank you.

[00:29:56] Speaker 00:
I thank both counsel cases.