[00:00:00] Speaker 00:
Thank you for having us here today at Boston College Law School.

[00:00:06] Speaker 00:
Our first case for argument is 24-1310, fly grip versus pop sockets.

[00:00:14] Speaker 00:
Is it Gonzales?

[00:00:16] Speaker 02:
It's Gonzales.

[00:00:17] Speaker 00:
Gonzales.

[00:00:18] Speaker 00:
Please proceed.

[00:00:19] Speaker 02:
May it please the court.

[00:00:21] Speaker 02:
My name is Dr. Greg Gonzales, and I'm representing fly grip.

[00:00:25] Speaker 02:
And first, I'll talk about the cones and pyramids

[00:00:30] Speaker 02:
And then I'll move on to the written description issue.

[00:00:33] Speaker 02:
Independent claim two recites an extension.

[00:00:35] Speaker 01:
Can I just ask you a preliminary question, which is if you have to win on both, because if we disagree with you on any one of these, the claims are gone.

[00:00:44] Speaker 01:
Is that the logistical situation?

[00:00:48] Speaker 02:
Yeah, there's two IPRs.

[00:00:49] Speaker 02:
So I would have to prevail on both written description and the obviousness with respect to Nakai and Princeton.

[00:00:58] Speaker 02:
Princeton, you're correct.

[00:00:59] Speaker 02:
Because this is an appeal of two IPRs.

[00:01:00] Speaker 02:
It was rejected for two different reasons.

[00:01:03] Speaker 02:
Independent claim two recites an extension consisting essentially of a single-case conical telescoping flexible two-leave structure.

[00:01:12] Speaker 02:
This is at 167 of the Joint Appendix at column nine.

[00:01:17] Speaker 02:
Now the board relied upon Greenfuss's disclosure of a sound conflict having a pyramid shape for the conical claim limitation.

[00:01:27] Speaker 02:
And this is at the final written decision on page 96 of the Joint Appendix.

[00:01:33] Speaker 02:
The board's obvious decision is based upon an incorrect claim construction that conflates a cone and a pyramid.

[00:01:44] Speaker 03:
Can I just ask, could you just tell me if I'm misremembering?

[00:01:49] Speaker 03:
My sense of the claim construction issue was that the intrinsic evidence doesn't tell us much.

[00:01:57] Speaker 03:
It uses the word cone, but doesn't tell us much.

[00:02:01] Speaker 03:
So this is one of those relatively unusual cases where turning to the dictionaries seems to be at the center.

[00:02:11] Speaker 03:
And it turns out that some of the dictionaries

[00:02:17] Speaker 03:
give definitions of cone to be something other than your classic circular base point at the top, ice cream cone type cone, broad enough to include what you're calling a pyramid, which would then make this a factual question under TEVA.

[00:02:39] Speaker 03:
Why does not not lead to an affirmance of the board on the claim construction?

[00:02:46] Speaker 02:
So I think I can explain that if you look at the pictures.

[00:02:51] Speaker 02:
Could you speak up a little bit?

[00:02:53] Speaker 01:
Sure.

[00:02:55] Speaker 02:
I'll move the microphone closer, holding forward also.

[00:02:59] Speaker 02:
So can you please take a look at 1707 of the joint appendix?

[00:03:21] Speaker 02:
Yeah.

[00:03:23] Speaker 02:
OK.

[00:03:23] Speaker 03:
So this is what?

[00:03:24] Speaker 03:
Is this?

[00:03:25] Speaker 02:
This is an excerpt from the expert's declaration.

[00:03:28] Speaker 02:
Your expert?

[00:03:29] Speaker 02:
Correct.

[00:03:31] Speaker 02:
And here you see various types of pyramids.

[00:03:34] Speaker 02:
But you have to look at two characteristics that are very important that all pyramids have.

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First, they have triangular planar sides.

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And second, they have a polygon shape as the base.

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So if you look at the base, there are sides.

[00:03:52] Speaker 02:
So for instance, the square pyramid, there's four sides.

[00:03:55] Speaker 03:
But I guess what I'm remembering, tell me if I'm misremembering, at least one of the definitions that the board relied on said the term cone can apply to basically any base, a point on top, and the lines drawn from the point to the places on the base.

[00:04:13] Speaker 03:
All of that would be true of all of these pyramids.

[00:04:17] Speaker 02:
Now I don't think that's the case, because if you look at, for instance, figure 20 of the path at issue, it shows what a cone looks like.

[00:04:26] Speaker 02:
It has two things that a pyramid doesn't have.

[00:04:31] Speaker 02:
First, it has curved circular sides, and also the base has to be curved.

[00:04:35] Speaker 02:
I mean, the cross-sections are curves.

[00:04:38] Speaker 02:
Even when you look at the entire shape in three volumes, you see that the sides are curved.

[00:04:44] Speaker 00:
That's just an embodiment.

[00:04:45] Speaker 00:
I don't think that the board said that something that's curved isn't conical.

[00:04:51] Speaker 00:
I think the board said that something that's curved is conical, but something that's not curved but has a closed planar curve is also conical.

[00:05:00] Speaker 00:
And the pyramid shape has a closed planar curve.

[00:05:04] Speaker 00:
What am I missing?

[00:05:05] Speaker 02:
That's no.

[00:05:08] Speaker 02:
The pyramid shape does not have smooth curve signs.

[00:05:12] Speaker 01:
Well, do you just agree that there were definitions in the record that supported the board's construction?

[00:05:21] Speaker 02:
Yes, I disagree with that because it's clear from these pictures if you compare the pictures of the pyramids and if you look at the characteristic of a pyramid and you look at the picture of figure 20, which is the figure that was identified as embodying the claims at issue in this proceeding.

[00:05:44] Speaker 00:
Claims are never limited to an embodiment.

[00:05:47] Speaker 00:
There's nothing in the spec that disclaims anything broader than the picture of Figure 20.

[00:05:55] Speaker 02:
So one of the things I referenced was a response to a restriction requirement.

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And the applicant selected an embodiment.

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And the applicant said, these claims, which include this limitation that we're discussing now, are supported by Figure 20.

[00:06:13] Speaker 02:
of the path.

[00:06:15] Speaker 01:
But the specification does not use the word conical, does it?

[00:06:19] Speaker 02:
The specification doesn't use the word.

[00:06:23] Speaker 02:
Hold on.

[00:06:23] Speaker 02:
I want to make sure I give an accurate answer to your question.

[00:06:26] Speaker 01:
I think conical only appears once in the claims and not at all on the specification.

[00:06:32] Speaker 01:
But tell me if I'm wrong.

[00:06:42] Speaker 02:
Yeah, right.

[00:06:43] Speaker 02:
So because it's not redefined by the specification, you would have to give it the meaning that a person of ordinary skill and the odd would give it.

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And a person of ordinary skill and the odd would understand that a cone is not a pyramid.

[00:06:57] Speaker 02:
They're two completely different things.

[00:06:59] Speaker 01:
But that's where the definitions come in, as Judge Gerardo said a few minutes ago, and the board relied on them.

[00:07:08] Speaker 01:
pick some definitions and not others as being apt for this.

[00:07:12] Speaker 02:
Yeah, but none of the definitions were inconsistent with what I'm telling you now.

[00:07:17] Speaker 02:
Okay.

[00:07:18] Speaker 02:
A cone has to have a curved base.

[00:07:21] Speaker 02:
It can't have a polygon base.

[00:07:23] Speaker 02:
It cannot.

[00:07:25] Speaker 02:
It's impossible.

[00:07:26] Speaker 02:
There is no cone that has a curved base.

[00:07:30] Speaker 02:
There's also no cone that has triangular planar sides.

[00:07:36] Speaker 02:
No cone has either of those two characteristics.

[00:07:40] Speaker 02:
Those are characteristics of a pyramid and not a cone.

[00:07:43] Speaker 02:
A cone has smooth curved sides, and it has a curved base.

[00:07:50] Speaker 00:
OK.

[00:07:50] Speaker 00:
What do you make, though, of, for example, various definitions that are in the appendix?

[00:07:59] Speaker 00:
Page 4471 is one.

[00:08:01] Speaker 00:
It actually has a square-based pyramid, which it calls a cone.

[00:08:09] Speaker 00:
And it actually says a cone is the general name of any shape that has a flat base of any shape tapering up to a point.

[00:08:17] Speaker 00:
The base can be any shape.

[00:08:19] Speaker 00:
If it is a polygon shape, it's called a pyramid.

[00:08:22] Speaker 00:
The cones, you will see in exams, will be circular-based, meaning

[00:08:27] Speaker 00:
This is extrinsic evidence in the form of some math textbook that was cited by the board that led them to conclude that this pyramid shape or polygon shape

[00:08:39] Speaker 00:
was nonetheless a cone because they relied on this extrinsic evidence.

[00:08:43] Speaker 00:
And we decide whether that's supported by substantial evidence.

[00:08:47] Speaker 00:
We don't look at it de novo.

[00:08:48] Speaker 00:
We have to evaluate whether there was substantial evidence for the board.

[00:08:52] Speaker 00:
Why isn't this substantial evidence?

[00:08:54] Speaker 00:
They're pointing to a pyramid and saying it's a cone in this textbook.

[00:09:00] Speaker 02:
Oh, OK.

[00:09:01] Speaker 02:
So with all due respect, Your Honor, I think you're misinterpreting what this says.

[00:09:05] Speaker 02:
Okay, this says, it does say, and I believe we're both at 4471 of the Joint Appendix, is that correct?

[00:09:12] Speaker 00:
That's where I am, yes.

[00:09:14] Speaker 02:
So a cone is the general name of a shape that has a flat base of any shape tapering up to a point.

[00:09:21] Speaker 02:
Then it says the base can be any shape.

[00:09:23] Speaker 02:
But one thing it doesn't say, it doesn't say that a cone can have a base that's a polygon.

[00:09:30] Speaker 02:
because that's just not true.

[00:09:32] Speaker 02:
It goes on to say that the base cannot have, the base of a cone has to be curved.

[00:09:41] Speaker 02:
It cannot have sides.

[00:09:44] Speaker 02:
It cannot be a polygon with sides connecting vertices.

[00:09:48] Speaker 02:
That's not what a cone is.

[00:09:50] Speaker 02:
That's what a pyramid is.

[00:09:53] Speaker 02:
And also a cone has to have smooth curved sides.

[00:09:57] Speaker 02:
So the definition that you're reading starts talking about a pyramid.

[00:10:01] Speaker 02:
It's not really a definition.

[00:10:02] Speaker 02:
It's just talking about two different things, a pyramid and a pyramid.

[00:10:06] Speaker 00:
I certainly understand your argument, but I have to review the board's conclusion otherwise for substantial evidence.

[00:10:15] Speaker 00:
This, it seems, best case scenario for you

[00:10:20] Speaker 00:
this passage in this textbook could be understood to have either of two meanings that the polygon is in fact the base shape of the cone or your meaning that nope that's not that's a pyramid and pyramid is distinct from a cone.

[00:10:36] Speaker 00:
Best case scenario for you there's two possible meanings for this the board chose one and I don't review it de novo I have to review it for substantial evidence so how I don't understand how I ignore

[00:10:49] Speaker 00:
the evidence that they pointed to.

[00:10:51] Speaker 02:
So I'm not asking you to ignore it.

[00:10:54] Speaker 02:
But with all due respect, I think you're misinterpreting what this particular passage is saying.

[00:10:59] Speaker 00:
OK, but you're misunderstanding because it's not me interpreting it.

[00:11:02] Speaker 00:
It's the board.

[00:11:03] Speaker 00:
And I have to give them substantial evidence deference.

[00:11:07] Speaker 00:
The board interpreted this.

[00:11:09] Speaker 00:
And I don't review it de novo.

[00:11:12] Speaker 02:
OK, but this doesn't mean the substantial evidence stand to be there.

[00:11:16] Speaker 02:
Because this is a definition, and the way I interpret this definition, particularly in light of a person of ordinary skill in the art reading it, is they would understand that talk about two different shapes, one is a cone and one is a curve.

[00:11:31] Speaker 02:
And a cone has a, and you also have to consider all of the other evidence that's up record, which indicates that a cone has a circular base, not a polygon, and a cone has a smooth curve sides, not plain or triangular sides.

[00:11:46] Speaker 02:
than just two completely different shapes.

[00:11:50] Speaker 00:
What about 4500, which is another piece of the extrinsic evidence which shows a safety cone, and that is not curved, it's clearly angular, and yet it's called a safety cone.

[00:12:08] Speaker 00:
This four-sided cone

[00:12:10] Speaker 00:
clearly mocks all types of hazards.

[00:12:12] Speaker 00:
I mean, this is all the evidence that the board had in front of it and cited.

[00:12:16] Speaker 00:
You agree that's not circular, correct?

[00:12:19] Speaker 02:
Right, but I think you've got to look at this particular page that you pointed to me in the context of what they're trying to describe.

[00:12:25] Speaker 00:
And look at 4502.

[00:12:26] Speaker 00:
4502 is very much a square cone, 4502, and yet it's called a cone.

[00:12:36] Speaker 00:
It's definitely angular and square.

[00:12:37] Speaker 00:
There is absolutely nothing circular about it.

[00:12:40] Speaker 00:
This is all the evidence that was in front of the board.

[00:12:42] Speaker 02:
4502 is an advertisement for a snack cone.

[00:12:47] Speaker 02:
It's not really a technical definition of a cone or a pyramid.

[00:12:51] Speaker 02:
It's not a definition.

[00:12:53] Speaker 02:
A person of ordinary skill and yard would not gain its understanding of a cone and a pyramid from advertisements from a snack cone or for some kind of traffic hazard item.

[00:13:06] Speaker 02:
a person of audience going, yeah, I would.

[00:13:08] Speaker 00:
But did you object to that evidence, this introduction?

[00:13:12] Speaker 00:
Did you suggest that it was inappropriate for the board to rely on that evidence?

[00:13:15] Speaker 00:
Did you object to it?

[00:13:17] Speaker 02:
You mean at the IPR?

[00:13:18] Speaker 02:
Yeah.

[00:13:19] Speaker 02:
I didn't do the IPR, but I understand that in the documents that were filed there, that was pointed out.

[00:13:27] Speaker 03:
At page 4462 is not an advertisement, but Merriam-Webster Dictionary, that's the one that I think we started with, a solid bounded by a circular or other closed plane base, and the surface formed by line segments joining every point of the boundary of the base to a common vertex.

[00:13:47] Speaker 03:
That's not advertisement.

[00:13:49] Speaker 03:
That does seem to cover the polygon-based cone

[00:13:57] Speaker 03:
to be tendentious.

[00:14:01] Speaker 02:
I'm sorry.

[00:14:01] Speaker 02:
So you had the page and you were reading.

[00:14:03] Speaker 02:
4462.

[00:14:03] Speaker 02:
While you were reading, I was looking for the page.

[00:14:06] Speaker 03:
Which portion did you read from?

[00:14:09] Speaker 03:
4462, definition 1B.

[00:14:14] Speaker 03:
1A is what you think of, and probably everybody in this room thought of the word cone as an initial matter, right?

[00:14:22] Speaker 03:
A classic right

[00:14:24] Speaker 03:
right circular, but B is the broader one.

[00:14:28] Speaker 02:
Okay, so B says that a solid bounded, meaning the base of it is curved or circular.

[00:14:36] Speaker 02:
It also says our other closed plane base, but it doesn't say that the plane base can be a polygon.

[00:14:42] Speaker 02:
It doesn't say that in this definition.

[00:14:46] Speaker 03:
formed by line segments joining every point of the boundary of the bass.

[00:14:51] Speaker 03:
Oh, I see.

[00:14:52] Speaker 03:
You're doing the verticals.

[00:14:54] Speaker 03:
But closed, plain bass doesn't say anything except that it's plainer and closed.

[00:15:01] Speaker 02:
I know, but I don't view that as saying that, you know, even something that's a polygon that has sides connecting vertices would

[00:15:15] Speaker 02:
OK.

[00:15:16] Speaker 00:
Counsel, you've used all your regular time and all your rebuttal time.

[00:15:20] Speaker 00:
If you'd like, I'll restore two minutes of rebuttal time.

[00:15:23] Speaker 00:
But we should hear from Mr. Washburn.

[00:15:34] Speaker 04:
Please, the court.

[00:15:35] Speaker 04:
Ian Washburn for Pops Rockets.

[00:15:38] Speaker 04:
Your Honors, I would like to start with Judge Pro's question regarding the Putinist

[00:15:43] Speaker 04:
is that you need not reach the second IPR if you affirm on either of the IPR.

[00:15:49] Speaker 04:
If you affirm on either of them, you don't need to reach the other one.

[00:15:52] Speaker 04:
This, in my understanding, would be similar to what the court did in Bernetics versus Cisco approximately two years ago.

[00:15:59] Speaker 04:
On that note,

[00:16:00] Speaker 04:
If there is one of the two IPRs that your honors are particularly interested in, I would be happy to direct my commentary to that IPR.

[00:16:06] Speaker 03:
Do you think you can guess which one that is?

[00:16:09] Speaker 04:
Yes.

[00:16:09] Speaker 04:
I was going to say.

[00:16:10] Speaker 04:
But given the discussion just now focusing on the 938, and in particular, on the construction of Cone.

[00:16:16] Speaker 04:
Now, a moment ago, the court asked whether counsel disagreed that there were definitions in the record that would cover a pyramid structure, such as that of Griffiths.

[00:16:30] Speaker 04:
In subsequent back and forth, Your Honors pointed to a variety of examples.

[00:16:35] Speaker 04:
Just so the record is clear, a few further examples of definitions in the record that support the board's construction that did not come up in the back and forth just now include Appendix 4469.

[00:16:51] Speaker 04:
I understand that a pyramid is a special case of cone and therefore you can refer to a pyramid as a cone but not the other way around.

[00:16:57] Speaker 04:
Am I correct?

[00:16:58] Speaker 04:
Answer you are correct.

[00:16:59] Speaker 04:
Appendix 4468, definition, the surface traced by a moving straight line that always passes through a fixed point of the vertex.

[00:17:09] Speaker 04:
Ellipsis, the directrix of a cone need not be a circle.

[00:17:14] Speaker 01:
OK, so your friend's answer, I'm not speculating, I'm trying to discern, seems to be that fine, there are definitions in dictionaries.

[00:17:23] Speaker 01:
But we're talking about how one's skilled in the art.

[00:17:26] Speaker 01:
would have construed the term, which only appears in the claims.

[00:17:32] Speaker 01:
So what's your answer to that?

[00:17:33] Speaker 01:
I mean, if in fact there was evidence that one's skills in the art would construe it a certain way, notwithstanding general dictionary definitions, would that not carry the day?

[00:17:43] Speaker 04:
In this situation, Your Honor, may I answer your question with some of the procedural history?

[00:17:49] Speaker 04:
The parties agreed that the terms received plain and ordinary meaning.

[00:17:54] Speaker 04:
The board did not suggest that anything else applied.

[00:17:57] Speaker 04:
And the board first looked to the intrinsic evidence and found nothing limiting conical.

[00:18:02] Speaker 04:
And then, as Your Honors discussed, looked to the extrinsic evidence.

[00:18:06] Speaker 04:
Now, theoretically, if the weight of the evidence supported a narrower meaning of cone,

[00:18:13] Speaker 04:
And based on that weight of evidence, the board were to find that a person of skill would have interpreted comb to be limited to structures with circular bases.

[00:18:24] Speaker 04:
Then the answer to your question is yes.

[00:18:27] Speaker 04:
The existence of some broader definitions would not necessarily carry the day.

[00:18:32] Speaker 04:
But that's not what happened here.

[00:18:34] Speaker 04:
Does that answer your question, Your Honor?

[00:18:36] Speaker 03:
Can I just ask, so between circle and polygon as base,

[00:18:42] Speaker 03:
lie a bunch of curved non-circles like ellipses.

[00:18:46] Speaker 03:
Which of the definitions, like the one you just cited from the Britannica, that's 4468, says it doesn't have to be a circle.

[00:18:57] Speaker 03:
Which of the definitions indicate that it can actually be a polygon, that is, with corners?

[00:19:06] Speaker 04:
Certainly, Your Honor.

[00:19:07] Speaker 04:
I'll be repeating back some of the back and forth from the previous argument.

[00:19:10] Speaker 04:
On Appendix 4462, which we provided the Board and the Board cited at Appendix 83,

[00:19:17] Speaker 04:
The definition is a solid bound by a circular or other closed plane base, and the surface formed by line segments essentially extending up to the vertex.

[00:19:27] Speaker 03:
Right.

[00:19:27] Speaker 03:
So that's certainly broad enough to include a polygonal, what's the term, directrix?

[00:19:34] Speaker 03:
Is that the term that's used in the Britannica?

[00:19:36] Speaker 00:
That's correct.

[00:19:37] Speaker 03:
Anyway, the base, since we're all thinking about it that way.

[00:19:41] Speaker 03:
But does any of the definitions affirmatively state, and by the way, that base can be a polygon as opposed to something smooth-curved but not necessarily circular?

[00:19:59] Speaker 04:
Firstly, Your Honor, I think it is difficult to dispute that a polygon is a closed plane as defined in 4462.

[00:20:06] Speaker 04:
I got that.

[00:20:07] Speaker 04:
That it's a flat shape as in 4471, et cetera.

[00:20:11] Speaker 04:
I am not aware of a definition that specifies that the base of a cone could be, quote, a polygon in those words, just as I am not aware of a definition that specifies explicitly that the base of a cone could be an octagon.

[00:20:28] Speaker 04:
The definitions state broadly that the base can be a closed point.

[00:20:33] Speaker 03:
Did the other side place in the record definitions that affirmatively state the base has to be smoothly curved that is non-polygonal?

[00:20:47] Speaker 04:
They placed in the record two definitions that suggested that the base needs to be circular.

[00:20:57] Speaker 04:
I don't believe there were any definitions that said it can be a lot of things, but it can't be a polygon.

[00:21:04] Speaker 04:
Does that answer your question?

[00:21:05] Speaker 03:
I think so.

[00:21:06] Speaker 04:
OK.

[00:21:07] Speaker 04:
And on the question of the smooth curve size, which I'm turning to because that may be related to your question, on appeal, appellant refers repeatedly to a definition that, in addition to stating that there needs to be a certain base,

[00:21:26] Speaker 04:
This comes from their initial briefing below.

[00:21:31] Speaker 04:
Their support for their construction of Combe was based entirely in paragraphs 76 to 77 of their experts report.

[00:21:42] Speaker 04:
This cites two definitions.

[00:21:43] Speaker 03:
Which I would find where?

[00:21:44] Speaker 04:
Certainly.

[00:21:46] Speaker 04:
Appendix 1706 to 1707.

[00:22:00] Speaker 03:
Okay, so why isn't that good enough to create a record in which on one side, it's not limited to circles, which I think is clear enough.

[00:22:17] Speaker 03:
That doesn't get you to bases with corners.

[00:22:21] Speaker 03:
We have one thing on the other side from an expert saying not polygons.

[00:22:28] Speaker 03:
Why does that allow the board to make the jump from two polygons are included?

[00:22:39] Speaker 04:
I would respectfully disagree that it's a jump.

[00:22:41] Speaker 04:
The board had for them two dictionary definitions as flag rips, extrinsic evidence supporting a requirement for a circular race.

[00:22:50] Speaker 04:
They had at least nine pieces of extrinsic evidence from us supporting our construction that the board was merely adopting.

[00:23:00] Speaker 04:
In that situation, oh, and further, Your Honor, one of the two definitions that Appellant put forward was half of an alternative definition.

[00:23:10] Speaker 04:
This is the 1A, 1B issue that you probably recall briefed in the papers.

[00:23:15] Speaker 04:
In that situation, I want to be very clear that we're not suggesting that the board should resolve these types of deceives by counting.

[00:23:23] Speaker 04:
But if we're asking under a substantial evidence inquiry, if a reasonable mind might accept the evidence as adequate to support the finding, I would submit, Your Honor, that surely a reasonable mind could accept our extrinsic evidence and testimonial evidence over theirs.

[00:23:49] Speaker 04:
So returning to the smooth, curved sides point, Your Honor, in the section of Flaggrip's expert Mr. McDonald's declaration that I pointed you to a moment ago, there are references to two footnotes.

[00:24:06] Speaker 04:
All of the discussion below focused on the first of those two definitions.

[00:24:11] Speaker 04:
The definition included in footnote 98, which can be found in appendix 4462.

[00:24:16] Speaker 03:
That's the Merriam-Webster that we've talked about.

[00:24:18] Speaker 04:
With the 1A1B.

[00:24:20] Speaker 04:
On appeal, Flaggrip has seized on the second of those two definitions, which is not the appellate record.

[00:24:27] Speaker 04:
I don't believe they argued that label below.

[00:24:30] Speaker 04:
I don't believe the term smoothed-curve sides was a remotely salient part of the discussion in the below IPRs, even if they had.

[00:24:40] Speaker 04:
even if this had been a live issue before the board.

[00:24:43] Speaker 04:
It wouldn't matter, because the parties have not disputed that a cone involves a base and a vertex with a bunch of line segments connecting them.

[00:24:50] Speaker 04:
That seems to be undisputed.

[00:24:53] Speaker 04:
If I understand the term smooth curved sides correctly, and I am working to correction, but if I understand this term correctly, whether that shape, whether that structure has, quote, smooth curved sides, will generally be entirely a function of the base.

[00:25:10] Speaker 04:
if I understand the way they're using that term correctly.

[00:25:12] Speaker 04:
So in our view, the pivoting, which I don't mean to do it, but turning more toward the second definition for appeal, with lots of emphasis on the term smooth curve sides, does nothing to undermine the board's reasoning and findings below.

[00:25:34] Speaker 03:
Let me just be sure I understand it.

[00:25:38] Speaker 03:
Did you just refer to how in the second IPR, which we haven't otherwise spoken about, a smooth code side wouldn't help them get the written description support?

[00:25:53] Speaker 03:
Is that what you just said, or no?

[00:25:54] Speaker 03:
No.

[00:25:55] Speaker 03:
I'm sorry.

[00:25:56] Speaker 04:
Let me try to be clearer.

[00:25:57] Speaker 03:
Aren't they trying to distinguish from prior art something that is truly polygonal?

[00:26:13] Speaker 03:
one right so just just say again then why do you think that let's assume which you don't want to just for assumptions that the right definition is

[00:26:26] Speaker 03:
smooth curved sides, then what is the effect on the board's obviousness ruling?

[00:26:36] Speaker 04:
The board's obviousness ruling did not exclude the possibility of smooth curved sides.

[00:26:41] Speaker 04:
And so if your honors were to find that smooth curved sides ought to have been adopted as part of the construction, that would not dislodge, at least in my understanding, that would not dislodge the board's findings.

[00:26:54] Speaker 00:
OK, one last question.

[00:26:56] Speaker 00:
Sure.

[00:26:56] Speaker 00:
How do you deal with the restriction requirement?

[00:26:59] Speaker 00:
Opposing counsel argued, I think if I remember right, the board found something like there were 12 distinct species in this disclosure and caused them to restrict to just one invention.

[00:27:10] Speaker 00:
And they identified figures 19 and 20 saying this depicts the same embodiment.

[00:27:16] Speaker 00:
This is what we are claiming now, basically.

[00:27:19] Speaker 00:
And 19 and 20 show a circular conical base.

[00:27:23] Speaker 04:
Certainly.

[00:27:26] Speaker 04:
that absent an indication otherwise, the claims should not be assumed to be limited to the embodiment and the specification.

[00:27:34] Speaker 04:
The species election that you're referring to essentially reduces the set of different embodiments to one.

[00:27:43] Speaker 04:
However, this court has been very clear, including in the Inova case that we cite in our papers, that just because there's only one embodiment doesn't mean you limit the meaning of terms in the claim to all features of that embodiment.

[00:28:02] Speaker 04:
Does that answer your question, Your Honor?

[00:28:04] Speaker 00:
Yes, I guess.

[00:28:07] Speaker 04:
All right.

[00:28:07] Speaker 04:
Briefly, Your Honor, some points on this topic from the briefing.

[00:28:11] Speaker 04:
First, in the briefing, there is extensive emphasis on the, quote, heavy presumption of plain and ordinary meaning.

[00:28:19] Speaker 04:
In our view, although that occupies a lot of space in the briefing, that is irrelevant because the parties agreed that the term conical should receive its plain and ordinary meaning here.

[00:28:32] Speaker 04:
Secondly, there are a few points in the briefing where there is an argument that the board's interpretation allows for, quote, any type of base.

[00:28:40] Speaker 04:
This issue was not before the board.

[00:28:41] Speaker 04:
They were simply deciding whether conical could include pyramidal structures.

[00:28:46] Speaker 04:
However, in my understanding, that would be incorrect because the definitions that the board relied upon would still imply flat base, the polygons,

[00:29:01] Speaker 04:
restriction to a flat base as opposed to a jagged base.

[00:29:07] Speaker 04:
And your honor, I'd be happy to.

[00:29:09] Speaker 03:
I just want to come back to one final thing.

[00:29:12] Speaker 03:
Yes.

[00:29:12] Speaker 03:
So I thought you said a couple of minutes ago that if we thought the right definition was smooth curved base sides, smooth curved sides, that the board's result would still be the same.

[00:29:29] Speaker 03:
How does that cover a pyramid?

[00:29:31] Speaker 04:
There was evidence before the board that it would be easy.

[00:29:39] Speaker 04:
There was evidence before the board that it would be a matter of, I believe, routine engineering, if I'm recalling the term correctly, to convert the pyramidal structure to a circular structure.

[00:29:51] Speaker 04:
And Greenfist also includes circular-based structures.

[00:29:55] Speaker 03:
Did the board make a finding to that effect?

[00:29:58] Speaker 04:
No.

[00:29:58] Speaker 04:
Oh, OK.

[00:30:00] Speaker 04:
To be clear, Your Honor, that if the board were to find that within the 024 pattern, the term conical is limited to shapes with circular bases, we acknowledge that the shape that the board relied upon in Greenfist

[00:30:18] Speaker 04:
does not have a circular base.

[00:30:19] Speaker 04:
I'm not trying to evade that.

[00:30:21] Speaker 04:
What I'm saying is that the term smooth-curve sides is ambiguous and candidly confusing.

[00:30:26] Speaker 04:
And the board did not reach this at all because they were not asked to.

[00:30:30] Speaker 04:
And that's why I answered earlier that I don't think that a finding ceasing on the term smooth-curve sides would necessarily undermine the board's finding.

[00:30:40] Speaker 00:
OK, Mr. Washburn, thank you.

[00:30:42] Speaker 00:
Council will give you two minutes for a vote.

[00:30:56] Speaker 02:
So I'll just be very brief, but I think Judge Taranto got it right when he said that the base need not be a circle, but it could be an ellipse.

[00:31:07] Speaker 02:
It has to be something that's circular or curved.

[00:31:11] Speaker 02:
It can't be a polygon.

[00:31:12] Speaker 02:
And none of the definitions say it can be a polygon with vertices that are connected by sides.

[00:31:18] Speaker 02:
It can't be a square.

[00:31:19] Speaker 02:
It can't be a triangle.

[00:31:20] Speaker 02:
It can't be a pentagon.

[00:31:21] Speaker 02:
can be any of those things.

[00:31:22] Speaker 03:
Before the board, did you present this issue as a binary choice between circle and polygon, as opposed to something in the middle, smooth curved side?

[00:31:35] Speaker 03:
Did you offer, did you say, at least you should conclude that the right definition is smooth curved side, which would include elliptical cross-sections?

[00:31:48] Speaker 02:
When I read the declaration, you know what I mean by you.

[00:31:52] Speaker 02:
Page 1706 and 1707, when the expert shows the pictures of a pyramid, and he contrasts that with the pictures of a cone, and he's talking about the characteristics of a cone from technical dictionaries, that if you have a curved base, you have to have smooth, curved sides on the shape, on the volume.

[00:32:16] Speaker 02:
And I think it's important because

[00:32:18] Speaker 02:
You know, if you would agree with me on claim construction, you know, I'll say two things with respect to that.

[00:32:26] Speaker 02:
First of all, the board relied upon Greenfist in its final written decision for this claim limitation.

[00:32:34] Speaker 02:
And take a look at Greenfist at 2871, please.

[00:32:42] Speaker 02:
Okay, so at 2871, you see the pyramid shape

[00:32:48] Speaker 02:
that's attached to the ear, 2871.

[00:32:55] Speaker 00:
Council will get to your point because you're out of time.

[00:32:57] Speaker 02:
And the pyramid doesn't have a curved base and it doesn't have smooth curved sides.

[00:33:03] Speaker 02:
And it's important because... They already conceded that.

[00:33:06] Speaker 00:
He stood here and said that he conceded it didn't have a curve.

[00:33:09] Speaker 02:
And that is, this is the figure that the board relied upon for its obvious decision with respect to the Nikai-Griffiths combination.

[00:33:17] Speaker 02:
So if you agree with us on the claim construction distinguishing a cone and a pyramid, then this particular reference doesn't teach us.

[00:33:24] Speaker 00:
OK.

[00:33:25] Speaker 00:
Thank you, counsel.

[00:33:25] Speaker 00:
This case is taken under submission.