[00:00:00] Speaker 01: Our first case is New York University versus ResMed, Inc. [00:00:05] Speaker 01: Mr. Garrison, you reserve four minutes of time for your rebuttal, correct? [00:00:11] Speaker 00: Yes, Your Honor. [00:00:34] Speaker 00: Good morning, Your Honors, Mayor of the Police and Court, Robert Kayarsa on behalf of New York University. [00:00:38] Speaker 00: There's many issues in this case today, and I'm happy to discuss any of them. [00:00:42] Speaker 00: If I may, I would like to focus on Matthew's in troubled wakefulness. [00:00:48] Speaker 00: If we start from the beginning on Matthew's in troubled wakefulness, we know that it was a coined term according to the petitioners. [00:00:56] Speaker 00: And there was an agreed construction for troubled wakefulness in these IPRs. [00:01:02] Speaker 00: That agreed construction was, as your honors can find on Apex 491, it is a state in which the breathing pattern is irregular, indicating that the patient is awake and anxious or uncomfortable. [00:01:18] Speaker 00: Not just irregular breathing patterns while awake, but regular, awake, and anxious and uncomfortable. [00:01:25] Speaker 00: Matthews does not teach that. [00:01:27] Speaker 00: If we look at the teaching in Matthews that's relied on by the board and by ResMed, it can be found at 9011 of the appendix in column 21. [00:01:37] Speaker 00: If you look at the paragraph that starts at line 34, you'll see the second sentence there is the sentence that's relied on repeatedly by the board and ResMed. [00:01:48] Speaker 00: And it reads, when a patient is awake in REM sleep or in distress, [00:01:55] Speaker 00: Breathing tends to be more erratic. [00:01:58] Speaker 00: Now, I'm not sure what tends to be more erratic means. [00:02:00] Speaker 00: That kind of implies there's erratic beforehand. [00:02:02] Speaker 00: But putting that aside, the first part of the sentence is what they're relying on. [00:02:08] Speaker 00: The patient is awake, in REM, or in distress. [00:02:13] Speaker 00: That or is a disjunctive coordinating conjunction. [00:02:16] Speaker 00: It means that they are separate. [00:02:18] Speaker 00: It's either awake, [00:02:21] Speaker 00: in REM or in distress. [00:02:23] Speaker 00: In other words, you can have erratic breathing when you're awake. [00:02:26] Speaker 00: You can have erratic breathing when you're in REM. [00:02:28] Speaker 00: It's perfectly fine. [00:02:29] Speaker 01: So your argument's based on your view of claim construction. [00:02:35] Speaker 00: It's not, Your Honor, and that's the mistake that the board made. [00:02:38] Speaker 00: The board said and did dismiss NYU's arguments below because it said, this is simply claim construction about the temporal and the amplitude structures of the waveform. [00:02:49] Speaker 00: That was incorrect. [00:02:50] Speaker 00: What NYU kept saying. [00:02:52] Speaker 01: You disagree with the clear construction that the board arrived at. [00:02:56] Speaker 01: We do disagree, Your Honor. [00:02:57] Speaker 01: And there's quite a difference between the two. [00:03:00] Speaker 01: Between, I'm sorry? [00:03:01] Speaker 01: The two constructions, yours and what the board came up with. [00:03:05] Speaker 00: There is quite a difference. [00:03:06] Speaker 00: But on troubled wakefulness, the parties had agreed what the construction was. [00:03:11] Speaker 00: They had agreed that it was a regular breathing pattern that indicated your wake. [00:03:16] Speaker 04: And just to follow up on Judge Rainn's question, in terms of your proposed construction, are you contending that it impacts any of the other obviousness arguments? [00:03:28] Speaker 04: I know that you're now contending that it has no impact on the arguments related to Matthews. [00:03:32] Speaker 00: So there's two construction issues. [00:03:35] Speaker 00: Well, one construction issue. [00:03:37] Speaker 00: It's analyzing the breathing patterns. [00:03:39] Speaker 00: That affects all the claims. [00:03:40] Speaker 00: I think there's 134 claims in here. [00:03:43] Speaker 00: Then there's troubled wakefulness. [00:03:44] Speaker 00: That's a subset of claims. [00:03:45] Speaker 00: It's approximately, I think, 14, maybe 15 claims. [00:03:48] Speaker 00: Troubled wakefulness had an agreed construction. [00:03:50] Speaker 00: And the problem here is that the board talked past what NYU was saying. [00:03:55] Speaker 00: Because NYU, what it was saying is the same thing NYU said in the briefing here, in Blue Brief, and you can find it at Blue Brief 64. [00:04:03] Speaker 00: NYU crystal clear said, erratic breathing is not troubled waveforms. [00:04:10] Speaker 00: Erratic breathing is what Matthews teaches can happen when you're awake, in REM, or in distress. [00:04:16] Speaker 00: Matthews does not teach that erratic breathing is indicative of being awake and in distress. [00:04:23] Speaker 00: And that's the problem that NYU was talking about repeatedly. [00:04:27] Speaker 00: NYU preserved this argument below. [00:04:29] Speaker 00: It's at 991 of the appendix. [00:04:32] Speaker 00: 2690 of the appendix, 366 of the appendix, and 6,000 in the appendix. [00:04:38] Speaker 00: It's also littered throughout the expert reports that are cited there. [00:04:42] Speaker 00: And what NYU was saying wasn't a claim construction argument. [00:04:45] Speaker 00: What NYU was saying was erratic breathing that was taught by Matthews is not troubled wakefulness and cannot tell you any difference between any of these states. [00:04:55] Speaker 00: And in fact, what NYU then said to try to prove that point [00:05:00] Speaker 00: was to look at how Matthews uses the information about erratic breathing. [00:05:04] Speaker 00: Matthews doesn't do. [00:05:07] Speaker 04: Which of your obvious arguments rise and fall with us agreeing with your proposed plank destruction on the analyzing breathing types? [00:05:19] Speaker 00: The analyzing. [00:05:20] Speaker 00: So that is separate from the trouble wave form. [00:05:22] Speaker 00: So trouble wave form. [00:05:23] Speaker 04: But I'm just answering my particular question, though. [00:05:25] Speaker 04: So which of your obvious arguments [00:05:28] Speaker 04: Require for you to win on that proposed claim construction. [00:05:32] Speaker 00: So the non-obviousness of the other claims Based on claim construction that would apply to all 134 claims There are subsets that are discussed in the briefing about some that have stores some that don't but in terms of troubled wakefulness That's that's separate. [00:05:47] Speaker 00: So it would be that all the claims would rot could be re [00:05:52] Speaker 00: All the claims, you could reverse on all the claims if you agree with the claim construction. [00:05:56] Speaker 00: But what I'm talking about is trouble wakefulness a lot. [00:05:58] Speaker 04: I think that's what you're talking about. [00:05:59] Speaker 04: But I want you to talk about what I want to talk about instead. [00:06:02] Speaker 04: So I just want to get a sense of if we disagree with you on your proposed claim destruction, are you still pushing your non-obviousness arguments in a different manner? [00:06:15] Speaker 04: And if so, what precise ones? [00:06:17] Speaker 00: Yes, and so the troubled wakefulness, what I'm talking about now is one of those examples. [00:06:20] Speaker 00: Even if you agree that with the broad reading of analyzing the breathing patterns, that it can be any analysis, there still has to be this teaching of troubled wakefulness. [00:06:29] Speaker 00: That was challenged below not on clean construction, as the board held, but on specific factual grounds, on substantial evidence grounds too. [00:06:36] Speaker 04: And is that the only one that you would be continuing to assert, the troubled wakefulness? [00:06:42] Speaker 00: On pure clean construction, yes. [00:06:45] Speaker 00: There are other evidentiary issues we brought up. [00:06:48] Speaker 00: For example, the snoring issue, the sleep sensor in the 460, those are all separate. [00:06:53] Speaker 00: But on claim construction, there's just that one. [00:06:56] Speaker 03: And so just to clarify, if we weren't to agree with you on claim construction, you're still maintaining all of those other arguments for why, notwithstanding the claim construction, you still think that there is not substantial evidence to support fact findings. [00:07:12] Speaker 03: on various obviousness issues, is that right? [00:07:15] Speaker 00: Correct. [00:07:15] Speaker 00: We're still maintaining those, yes. [00:07:16] Speaker 03: So on your troubled weightfulness argument, I noticed that in your brief, you say that NYU provided substantial evidence countering the claim that Matthews identifies the troubled weightfulness state. [00:07:27] Speaker 03: Now, that doesn't matter, right? [00:07:28] Speaker 03: I mean, we're supposed to just look at whether there is substantial evidence to support the finding that the board made, right? [00:07:36] Speaker 00: Yes, there has to be substantial evidence for the finding the board made. [00:07:39] Speaker 00: But that was the point that NYU was arguing below, that there's no substantial evidence, there's no evidence really, to support the idea that Matthews teaches troubled wakefulness. [00:07:48] Speaker 00: Troubled wakefulness, as NYU kept saying, is different than erratic breathing. [00:07:52] Speaker 00: Matthews only teaches erratic breathing. [00:07:54] Speaker 00: And perhaps the way to approach this is to look at what the board actually said and what it ruled. [00:07:58] Speaker 00: If you look at Apex 524 and 525, [00:08:03] Speaker 00: You'll see that at the bottom of Apex 524, the board, and here they're talking about Matthew's in trouble wakefulness, they say, we're persuaded that Matthew's teaching adjusting the airflow pressure depending on the patient breathing theoretically. [00:08:18] Speaker 00: The board is not finding. [00:08:19] Speaker 00: It's not saying. [00:08:20] Speaker 00: I apologize. [00:08:21] Speaker 03: You're in 524. [00:08:23] Speaker 00: 524, the sentence at the bottom, Your Honor. [00:08:25] Speaker 03: Thank you. [00:08:26] Speaker 00: It starts, we are also persuaded. [00:08:29] Speaker 00: What the board here is saying that Matthews teaches adjusting the airflow depending on the patient breathing erratically. [00:08:37] Speaker 00: It doesn't say depending on the patient breathing erratically and also being anxious. [00:08:42] Speaker 00: Matthews expressly taught that erratic breathing, more tending towards more erratic breathing, excuse me, is OK when you're awake. [00:08:52] Speaker 00: It's OK when you're in rem. [00:08:54] Speaker 00: But you also could be in distress. [00:08:56] Speaker 00: You could be in hypopnea. [00:08:57] Speaker 00: You could be in apnea. [00:08:58] Speaker 00: It never says what the agreed claims instruction was, which is you have to have a regular breathing. [00:09:05] Speaker 00: That's fine. [00:09:06] Speaker 00: You can equate that with erratic breathing, perhaps. [00:09:09] Speaker 00: But it doesn't teach awake and anxious or uncomfortable. [00:09:14] Speaker 00: What the board found was it teaches erratic breathing. [00:09:19] Speaker 00: What NYU was saying is exactly what it said on Blue Roof 64. [00:09:23] Speaker 00: Erratic breathing is not trouble wakefulness. [00:09:26] Speaker 00: It's not. [00:09:27] Speaker 00: And I think there were a little bit of ships passing in the night, because what the board said is, well, this is just claim construction. [00:09:32] Speaker 00: It's not just claim construction. [00:09:33] Speaker 00: If your honors look at what the argument was made, for example, on Apex 6000, [00:09:45] Speaker 00: It starts there and it goes to 6004. [00:09:47] Speaker 00: This is just one of the examples of that list that I gave you. [00:09:52] Speaker 00: What NYU is saying here is that there's no distinction between erratic breathing of wakefulness and sleep. [00:09:57] Speaker 00: Also, there's no distinction between REM sleep and differentiating that from troubled wakefulness. [00:10:02] Speaker 00: Essentially, as NYU said, Matthews is treating the CPAP machine rather than the patient. [00:10:07] Speaker 00: And the reason is what Matthews does is it says, OK, we have erratic breathing because you're past this threshold. [00:10:13] Speaker 00: Now that we have erratic breathing, it doesn't matter what state you're in. [00:10:16] Speaker 00: You could be awake. [00:10:16] Speaker 00: You could be in REM. [00:10:17] Speaker 00: You could be in apnea. [00:10:20] Speaker 00: Because you have erratic breathing, if the pressure before was going up, go down. [00:10:24] Speaker 00: If the pressure was going down, go up. [00:10:25] Speaker 00: If it was the same, keep it the same. [00:10:27] Speaker 03: You have quite a few representative claims identified in your brief. [00:10:31] Speaker 03: Which one has the limitation that relates to what you're talking about now? [00:10:35] Speaker 00: So I think the easiest one, Your Honor, is the 344 patent. [00:10:39] Speaker 00: If you look at the 344 patent, it's kind of the last page of the addendum. [00:10:45] Speaker 00: There, it's claims 1 and 7 would be the relevant claims. [00:10:49] Speaker 00: Both of those include the struggle to wake from this. [00:10:52] Speaker 00: I think if you look at 7, [00:10:55] Speaker 00: It's very clear. [00:10:56] Speaker 00: It says the processing arrangement configured to analyze the breathing patterns to determine which of the following states. [00:11:02] Speaker 00: So in other words, you have to determine which of those four states the breathing pattern indicates. [00:11:06] Speaker 03: That's not one of the representative claims for Wentworth. [00:11:09] Speaker 00: Oh, claim 1-2. [00:11:10] Speaker 03: They're required in the premier brief. [00:11:11] Speaker 00: Yeah, claim 1-2 says that patterns are indicative of troubled wakefulness state. [00:11:15] Speaker 00: So no matter if it's claim one or seven or any of the troubled wakefulness, you still have to detect troubled wakefulness. [00:11:21] Speaker 00: And as NYU repeatedly said to the board, based on what the experts are saying, based on this extensive factual argument. [00:11:27] Speaker 03: And the undisputed claim construction was the troubled wakefulness means anxious and? [00:11:32] Speaker 00: Anxious and, sorry, the correct, the construction was it's on 491. [00:11:39] Speaker 00: It was a coined term, according to petitioners. [00:11:41] Speaker 00: That's on 168. [00:11:42] Speaker 00: The petitioner said this is a coined term. [00:11:44] Speaker 00: It's a new term. [00:11:45] Speaker 00: That's consistent with the inventive story here, that NYU's patents are disclosing troubled wakefulness and teaching how to actually detect troubled wakefulness versus these other states. [00:11:57] Speaker 00: That's what Matthews doesn't do, because the breed construction was troubled wakefulness is irregular breathing. [00:12:05] Speaker 03: Where is that disclosed in, for example, the 344 patent? [00:12:10] Speaker 03: What column and line number should I look for for where the patent teaches specifically how to analyze troubled wakefulness? [00:12:19] Speaker 00: How to analyze troubled wakefulness? [00:12:20] Speaker 03: Yeah, how to look at the breathing pattern and identify from the breathing pattern. [00:12:26] Speaker 00: So the board and the parties relied below on 454 to 58. [00:12:31] Speaker 00: That's what the board held, and that's what the board said. [00:12:33] Speaker 00: They said at the hearing, the paper is that the parties agreed that the term should be construed as a state in which the breathing pattern is irregular, indicating that the patient is awake and either anxious or uncomfortable. [00:12:47] Speaker 03: Wait, just to be clear about what I was asking. [00:12:49] Speaker 03: It was a different question. [00:12:51] Speaker 03: My question was, where in the specification [00:12:54] Speaker 03: Will I find a disclosure of that, analyzing something in order to know what troubled wakefulness is, how the patent discloses that it looks at the breathing pattern to detect that? [00:13:08] Speaker 03: Is there anything in the specification that tells me that? [00:13:11] Speaker 00: Yes. [00:13:12] Speaker 00: There's 454 to 58. [00:13:13] Speaker 00: There's 465 to 53. [00:13:16] Speaker 03: Are you giving me appendix pages? [00:13:21] Speaker 00: I'm giving the citations to the patent itself, Your Honor. [00:13:24] Speaker 00: So it would be 594, column 4. [00:13:29] Speaker 00: Essentially, if you look at column 4 starting at approximately line 8, that whole column going down, continuing to the next page, 513. [00:13:37] Speaker 00: That describes all the analysis that happens. [00:13:40] Speaker 00: And what it says, what it shows, [00:13:42] Speaker 00: is that the troubled wakefulness state has to be detected by amplitude and by time series in order to determine that. [00:13:49] Speaker 00: And what the board here held was that it was enough that Matthews taught on 524 erratic breathing. [00:13:58] Speaker 00: Erratic reading is not troubled wakefulness. [00:14:01] Speaker 00: You can see that in NYU's arguments. [00:14:03] Speaker 00: You can see that in Matthew's patent itself. [00:14:06] Speaker 00: Matthew's patent itself says those three. [00:14:08] Speaker 01: So you're well into your rebuttal time. [00:14:12] Speaker 01: And I'll let you with those I have to say. [00:14:14] Speaker 01: And I'll reassure you of your rebuttal time. [00:14:16] Speaker 01: Thank you. [00:14:28] Speaker 01: You may proceed. [00:14:30] Speaker 02: Thank you, Your Honors. [00:14:32] Speaker 02: Good morning, Your Honors. [00:14:33] Speaker 02: May it please the court, Lisa Nguyen, on behalf of Appellee Resume Inc. [00:14:38] Speaker 02: Appellant wants to make this case about troubled wakefulness, but it's not. [00:14:43] Speaker 02: Ultimately, the inventive concept is not troubled wakefulness. [00:14:47] Speaker 02: In fact, the 539 doesn't even have any troubled wakefulness term in its claims. [00:14:52] Speaker 02: And with respect to all seven patents, only two patents have it in their independent [00:14:57] Speaker 02: independent claims, and that's the 994 and 344. [00:15:02] Speaker 02: Troubled wakefulness does not appear in any of the other independent claims for the five other patents. [00:15:09] Speaker 02: So this case is not about troubled wakefulness. [00:15:12] Speaker 02: But regardless, we agree that troubled wakefulness does mean state in which the breathing pattern is irregular, indicating that the patient is awake and either anxious or uncomfortable. [00:15:27] Speaker 02: But what NYU gets wrong is what the board actually found and what our post-combination actually is. [00:15:36] Speaker 02: NYU is looking at Matthews in isolation and just looking at the right breathing. [00:15:42] Speaker 02: But if you look at appendix 523, the page before, the page that NYU cited, [00:15:50] Speaker 02: That is where the board provided substantial evidence that the proposed combination does disclose troubled wakefulness. [00:16:00] Speaker 02: And it's not that Matthews discloses awake or asleep. [00:16:05] Speaker 02: You've said Matthews does not disclose that limitation. [00:16:09] Speaker 02: What it is is that in combination with 7-4-60, you have awake and irregular or erratic breathing. [00:16:18] Speaker 02: And Matthews itself, even in the citation that counsel read, does disclose that arriving to breathing can occur when the patient is awake or in REM sleep or distressed. [00:16:32] Speaker 02: And Matthews recognizes that and then says, once that happens, if we go to appendix 9-0-11, column 21, line 60, when breathing becomes unstable, [00:16:47] Speaker 02: Matthews teaches appropriately managing any necessary pressure changes, which brings us back to what this patent is really about. [00:16:56] Speaker 02: If the patient is awake, let's decrease the pressure so that the patient is more comfortable. [00:17:02] Speaker 02: And if the patient is asleep, let's increase pressure so that you can address the... What was the common line number you indicated in Matthews? [00:17:11] Speaker 02: Sure, 21, line 60 through 61. [00:17:14] Speaker 02: OK, thank you. [00:17:18] Speaker 02: And so the board's decision was supported by substantial evidence, because the board says on Appendix 523, we are also persuaded that Selim 460 teaches determining whether a patient is awake or asleep, and that Matthews teaches detecting erratic breathing during wakefulness and sleep. [00:17:38] Speaker 02: Combining the teachings of Selim 995, Selim 460, and Matthews as petitioner proposes result [00:17:45] Speaker 02: in a processing arrangement that determines whether the patient is awake or asleep and whether the patient is breathing erratically. [00:17:52] Speaker 02: So we have that you're awake and you're breathing erratically. [00:17:56] Speaker 02: And that's what the combination is, and that's what the substantial evidence supports. [00:18:01] Speaker 04: What is your viewpoint on which questions you need to reach if we disagree with opposing counsel's proposed claim construction on the analyzing breathing patterns? [00:18:12] Speaker 02: Analyzing breathing patterns, ultimately, [00:18:15] Speaker 02: It's supported by substantial evidence that it is disclosed, that the combination does disclose it. [00:18:20] Speaker 02: And remember that, again, troubled wakefulness is not in all the claims, but what NYU is trying to do is incorporate it into all the claims by requiring that analyzing breathing patterns determines all wake states and all sleep states. [00:18:36] Speaker 02: But the patents do not require that, in fact, [00:18:40] Speaker 04: I think I need to ask the question a little bit differently. [00:18:42] Speaker 04: What I'm trying to figure out is, let's say I agree or the panel agrees that the board got it right in terms of that particular construction. [00:18:55] Speaker 04: What is your take in terms of, I assume, we need to reach all of the obviousness arguments that were also raised in terms of substantial evidence and like, I don't know how to describe it. [00:19:04] Speaker 02: That's correct. [00:19:04] Speaker 02: That's correct. [00:19:05] Speaker 02: Whether or not the construction is correct or not, the board had substantial, I think what NYU is arguing is that regardless of the construction, there was no substantial evidence. [00:19:15] Speaker 02: But there absolutely was substantial evidence supporting the board's opinion with respect to that combination. [00:19:25] Speaker 02: Appellant has not pointed out what's missing from that other than their construction, ultimately. [00:19:33] Speaker 02: And so again, they are actually, they are, despite the fact that they said they are not relying on the construction to say that the board did not provide substantial evidence, they are because the argument is that analyzing breathing patterns cannot determine troubled wakefulness. [00:19:50] Speaker 02: And one, that the construction is correct, two, [00:19:55] Speaker 02: The board found that with substantial evidence that it does actually find trouble wakefulness because the combination provides are you awake and if there's erratic breathing. [00:20:06] Speaker 02: You only not determine trouble wakefulness if somehow you interpret analyzing breathing patterns to not be able to determine trouble wakefulness. [00:20:16] Speaker 02: And there is exactly what the patent identifies as determining trouble wakefulness [00:20:25] Speaker 02: in the patent. [00:20:26] Speaker 02: So if we go to, for example, the 009 patent, appendix 595 at column 5, line 25, it says, the type of irregularities seen during REM sleep differs from that seen in wakefulness in several key parameters. [00:20:47] Speaker 02: The REM-associate pattern of breathing may include four examples. [00:20:52] Speaker 02: So this is not required. [00:20:53] Speaker 02: It's four examples. [00:20:55] Speaker 02: the absence of larger breasts, especially after pauses, generally high respiratory rates, and low flow rates, and a tendency for clustering of small breasts. [00:21:06] Speaker 02: These differences in the pattern of respiratory airflow signal from those seen during troubled wakefulness allow the separation of these states and can be used to make the change in the applied pressure. [00:21:18] Speaker 02: And so the patent is telling you this is one of the ways you can determine the difference between REM sleep [00:21:25] Speaker 02: and troubled wakefulness. [00:21:27] Speaker 02: And that's using a low airflow rate. [00:21:31] Speaker 02: And that's exactly what Sullivan-460 does in combination with Matthews. [00:21:37] Speaker 02: You have a low airflow rate, and you have erratic breathing. [00:21:41] Speaker 02: And that's how you determine troubled wakefulness. [00:21:45] Speaker 02: NYU also tries to insert the requirement that you [00:21:50] Speaker 02: identify all wake states and all sleep states. [00:21:53] Speaker 02: But if you go to, for example, appendix 596, which is the 009 patent, in column 7, there's actually several examples of just identifying a sleep state or a wake state, or even just identifying the sleep state. [00:22:10] Speaker 02: So in column 7, at line 10, the patent says, in this embodiment, the processing arrangement. [00:22:18] Speaker 01: Line what? [00:22:19] Speaker 02: Line 10. [00:22:21] Speaker 02: In this embodiment, the processing arrangement 24 may determine whether the patient is in a sleep state or a wake state. [00:22:31] Speaker 02: It doesn't say all. [00:22:32] Speaker 02: It says A. Also, at line 21, the patent says, thus the processing arrangement 24 may only detect whether the patient is in a sleep state. [00:22:45] Speaker 02: And when the sleep state is not detected, default to assuming that the patient is in a wake state. [00:22:51] Speaker 02: So this goes back to the patent is not about determining the difference between troubled wakefulness and run asleep. [00:22:57] Speaker 02: The patent actually provides a lot of different embodiments that allow you just to determine in different ways a wake state or a sleep state, and in some cases, just a sleep state. [00:23:12] Speaker 02: So unless your honors have any other questions, I'll submit. [00:23:39] Speaker 00: I would like to start, if I may, with trouble to wakefulness. [00:23:42] Speaker 00: My friend said that she agreed with the claim construction, but she does not, because that's not what she was applying. [00:23:50] Speaker 00: Just like the board said, lip service the claim construction, and then said, that's what we found. [00:23:55] Speaker 00: That's not what they found. [00:23:57] Speaker 00: She agreed that claim construction requires awake and anxious, not just irregular breathing pattern. [00:24:03] Speaker 00: Irregular breathing pattern has to show that you're awake and anxious. [00:24:07] Speaker 00: So it's irregular, awake, and anxious according to the construction they agreed to. [00:24:12] Speaker 00: But then she said that there was substantial evidence because the combination showed that you're awake and breathing erratically. [00:24:19] Speaker 00: Where's the anxiousness? [00:24:21] Speaker 00: Matthews expressly teaches that breathing erratically can be awake in REM or distress. [00:24:27] Speaker 00: Where does it come together that you're awake in distress? [00:24:30] Speaker 00: It doesn't. [00:24:32] Speaker 00: That's what the construction requires, and that's what they applied. [00:24:35] Speaker 00: If you look at Redbrief 59, there's no doubt that this is what they're asking for. [00:24:40] Speaker 00: ResMed said, there is no dispute that troubled wakefulness state means that the patient is awake and breathing pattern is irregular. [00:24:48] Speaker 00: That's wrong. [00:24:49] Speaker 00: That is not the construction. [00:24:51] Speaker 00: That is not the agreement. [00:24:52] Speaker 00: There is a hundred percent dispute about that because exactly what NYU said below to the board said to this court, erratic breathing is not troubled wakefulness. [00:25:02] Speaker 00: That is not the construction. [00:25:04] Speaker 03: You need to have a rule. [00:25:07] Speaker 03: And the board relied on Dr. Beybehany's expert testimony, right? [00:25:13] Speaker 03: An expert declaration that talked about this? [00:25:15] Speaker 00: On Dr. Kirkness and Mrs. Bates. [00:25:18] Speaker 00: Yeah, I know who did that. [00:25:20] Speaker 00: They did. [00:25:21] Speaker 03: There's absolutely expert testimony, yes. [00:25:25] Speaker 00: And there's two problems, is that the board, number one, didn't consider it based, but they didn't consider NYU's arguments because they dismissed it as claim construction. [00:25:32] Speaker 00: It wasn't claim construction. [00:25:33] Speaker 00: NYU is very clearly saying erratic breathing is not enough. [00:25:37] Speaker 00: Erratic breathing is just irregular breathing pattern. [00:25:40] Speaker 00: The construction is in a regular breathing pattern that shows you're awake. [00:25:44] Speaker 00: and anxious or uncomfortable. [00:25:47] Speaker 00: And what Matthews teaches, that one line, the words awake, rem, and distress appear once in Matthews. [00:25:53] Speaker 00: 44 columns, thousands of words, those words appear once. [00:25:57] Speaker 00: in one sentence saying awake, rem, or distressed. [00:26:00] Speaker 00: It doesn't say awake and distressed. [00:26:02] Speaker 00: So how does this combination that the board found, how does that teach differentiating troubled wakefulness, which is irregular breathing pattern, awake and anxious, from simply being awake and having erratic breathing, which Matthews teaches is fine. [00:26:16] Speaker 00: It happens when you're awake. [00:26:18] Speaker 00: There is no indication at all in Matthews that there's erratic breathing that indicates that there's some type of distress in being awake. [00:26:26] Speaker 00: And that's one of the problems. [00:26:29] Speaker 00: The fundamental problem is that Matthews looks at erratic breathing and just says, hey, this is a number to change the pressure on. [00:26:34] Speaker 00: But it's not doing it in response. [00:26:36] Speaker 00: It's not determining the state. [00:26:37] Speaker 00: And it's especially not determining troubled wakefulness as construed. [00:26:41] Speaker 00: And unfortunately, that's what ResMed [00:26:43] Speaker 00: Advocated for in the red brief. [00:26:44] Speaker 00: That's what they advocated before they confuse the board into thinking that erratic breathing Means you're in distress. [00:26:50] Speaker 00: It doesn't mean that Matthews expressly teaches otherwise Erratic breathing as Matthews teaches can be fine when you're awake. [00:26:58] Speaker 00: You can be fine when you're around You can also be in distress. [00:27:01] Speaker 00: You can have apnea. [00:27:02] Speaker 00: You can have hypopnea It never says you're awake and anxious [00:27:07] Speaker 00: That's what the patentees were talking about. [00:27:08] Speaker 00: That's what NYU was talking about below. [00:27:10] Speaker 00: And that's what it was talking about to this court, too. [00:27:14] Speaker 00: Indeed, I think that one of those confusions and where it came from is that ResMed, in some instances, as in Apex 212 and Apex 518, [00:27:25] Speaker 00: They use ellipses, and they use emphasis, and they use kind of this background thought to a layperson of, OK, well, erratic breathing is not normal breathing, so that must mean you're in distress. [00:27:37] Speaker 00: That seems to be what's going on here. [00:27:40] Speaker 00: But the problem is erratic breathing in Matthews, as NYU repeatedly said, is not troubled wakefulness. [00:27:45] Speaker 00: There's no indication that you can use that to differentiate between any state. [00:27:49] Speaker 00: Matthews doesn't use it. [00:27:50] Speaker 00: And erratic breathing in Matthews is not troubled wakefulness. [00:27:53] Speaker 00: The board simply said, that's claim construction. [00:27:56] Speaker 00: At the very least, it's got to go back for the board to consider the evidence that NYU put forward and the arguments that NYU put forward, instead of just saying they're claim construction. [00:28:05] Speaker 00: Because Matthews does not teach that troubled wake from the state as construed. [00:28:11] Speaker 00: And as the red brief shows, what they were looking for wasn't the construction. [00:28:15] Speaker 00: It was simply erratic breathing. [00:28:17] Speaker 01: OK, well, I think we have that argument.