[00:00:00] Speaker 03:
The next case is number 24, level 30, rapid pulse, new process, number 8.

[00:00:07] Speaker 04:
Okay, Mr. Bell?

[00:00:09] Speaker 04:
Good morning, Your Honor.

[00:00:11] Speaker 04:
Judge Dyken, may it please the court, Gabe Bell for the appellant rapid pulse.

[00:00:16] Speaker 04:
We're here in this appeal on the so-called double-closed state claims that are in rapid pulses thrombectomy system, aspiration thrombectomy catheter system.

[00:00:28] Speaker 04:
The issue here and the board's fundamental error boils down to this.

[00:00:33] Speaker 04:
The board based its decision on could not would.

[00:00:38] Speaker 04:
So the notion that you could implement a double closed state, not that a person of ordinary skill would do so.

[00:00:46] Speaker 04:
And we know that because there is no evidence and no reasoning by the board in either of its decisions about why a person of ordinary skill

[00:00:54] Speaker 04:
would implement a double-closed state.

[00:00:57] Speaker 04:
Rather, what the board relied on is evidence that, for example, from Mr. Brown, the petitioner's expert, that it was possible.

[00:01:09] Speaker 04:
Not that the Teagan provisionals, for example, disclosed it.

[00:01:13] Speaker 04:
So the board had really kind of three types of evidence before it.

[00:01:17] Speaker 04:
The Teagan provisionals, which the board found, did not disclose a double-closed state.

[00:01:22] Speaker 04:
In other words, did not support

[00:01:24] Speaker 04:
the ultimate patent for Teagan, which did have a double-closed state.

[00:01:29] Speaker 04:
That was a key issue in the board's decision, that it was going to disregard those express disclosures in the Teagan patent.

[00:01:38] Speaker 04:
Now, there's a reason for this.

[00:01:40] Speaker 04:
The reason is that the provisionals themselves never said double-closed state, and then after

[00:01:46] Speaker 04:
put forth its applications in 2018.

[00:01:49] Speaker 04:
Five days later, Tegan, who is an inventor for the petitioner, changed its application to add in the international version a double-closed state and then ultimately in the patent that was issued a double-closed state.

[00:02:04] Speaker 04:
But going back, the Tegan provisionals the board found are what matters here.

[00:02:08] Speaker 04:
And they, the board said, do not disclose double-closed state.

[00:02:12] Speaker 04:
Nonetheless, the board said there are these other paragraphs, specifically paragraphs 69, 64, and 65, in that order, that the board quoted and said these sort of looked like they would lead to a double closed state.

[00:02:28] Speaker 04:
But Mr. Brown, again, this is petitioner's expert, admitted in his deposition testimony, and this is at pages 95, 92, through the end of the appendix, pressed repeatedly

[00:02:40] Speaker 04:
Did any of these paragraphs disclose performing a double-closed state as opposed to, for example, simultaneous operation?

[00:02:50] Speaker 03:
That's not quite true, because the supplemental declaration says that a double-closed state, a serial operation, has advantages over simultaneous because you avoid possible mistakes.

[00:03:08] Speaker 04:
So the evidence from Minister Brown, I don't believe he ever said that serial, other than a conclusory sentence, I should say.

[00:03:21] Speaker 03:
So he kind of concluded- There's more than that.

[00:03:24] Speaker 03:
There's paragraph 68, for example.

[00:03:25] Speaker 03:
This supplemental declaration talks at some length about how this is much more wild than a serial operation where you have temporary double-plus state.

[00:03:37] Speaker 03:
It's not in the appendix.

[00:03:38] Speaker 03:
You're not going to find it there.

[00:03:39] Speaker 03:
It's more wild than that.

[00:03:40] Speaker 04:
So I think, and correct me if I'm wrong, I think what your honor is referring to is the notion that you would necessarily have a double closed state in order to confirm the state of the two valves.

[00:03:52] Speaker 04:
To confirm before you move on.

[00:03:54] Speaker 03:
Well, if Hunter's article had both valves open at the same time, that would seem to be undisputed.

[00:04:00] Speaker 03:
And what he was saying is that in order to avoid that possibility, it's good to have a double closed state serial operation rather than simultaneous operation.

[00:04:10] Speaker 04:
Well, so I agree that his testimony focused on not having two valves open, but it doesn't follow from that.

[00:04:19] Speaker 04:
If you say don't have two valves open, there's kind of three, there's two other possibilities.

[00:04:23] Speaker 04:
You could have simultaneous operation where

[00:04:26] Speaker 04:
To avoid having two valves open, you immediately close or open one as you close the other.

[00:04:31] Speaker 04:
That would avoid double open.

[00:04:33] Speaker 03:
Yeah, but he says the point in his testimony is that's unreliable, not standard practice, and could lead to possible errors.

[00:04:41] Speaker 04:
And so I think what's notable here is that's not what the board relied on.

[00:04:45] Speaker 04:
Well, the board do rely on that part of his testimony.

[00:04:49] Speaker 04:
I don't see anywhere in there where they, for example, in the first decision.

[00:04:54] Speaker 03:
They don't quote it.

[00:04:55] Speaker 04:
Well, all we have to go on is what the board says, and what we have in pages 49 to 51, for example, is the board looking at the Teagan provisionals, and this is at page 49 and 50, quoting each of those three paragraphs,

[00:05:14] Speaker 04:
and going over to page 50.

[00:05:16] Speaker 04:
At the end of that, simply concluding, therefore, we would find it obvious to jump from those provisional paragraphs, none of which disclose double-closed state, to jump to the conclusion that there is, in fact, a double-closed state.

[00:05:31] Speaker 04:
And so there's no other reasoning.

[00:05:33] Speaker 04:
There's nothing else that I could see that the board has attempted to bolster its decision with until it got to the second decision.

[00:05:40] Speaker 04:
Now, I'll acknowledge in the second decision, it gave a more extensive discussion.

[00:05:45] Speaker 04:
But that more extensive discussion was about Mr. Brown's testimony at paragraph 165 of his declaration, wherein he explained why you wouldn't want to have two valves open at the same time.

[00:05:57] Speaker 04:
Again, that's the only evidence the board really had is don't have two valves open.

[00:06:01] Speaker 04:
So you're not in that first world.

[00:06:03] Speaker 03:
Well, what I'm suggesting to you is that they did have other evidence, and the other evidence was that simultaneous operation created risks of error, and therefore you would have serial operation.

[00:06:16] Speaker 04:
So I think that the risk of error that that testimony goes to is the notion that you would want to confirm the state, right?

[00:06:24] Speaker 04:
You would want to confirm the state before you move on.

[00:06:27] Speaker 04:
And this is something I would like to draw the court's attention to that my friends on the other side in the red brief five times relied on that rationale at pages 11, 19, 20, 21, and 22, twice on page 22.

[00:06:43] Speaker 04:
Five times relied on that rationale, but that was not the board's rationale.

[00:06:47] Speaker 04:
They were quoting their own position.

[00:06:50] Speaker 04:
from their papers below and attributing it to the board.

[00:06:55] Speaker 04:
And so I think they recognize that there's a problem here that the board didn't have actually explain itself enough.

[00:07:01] Speaker 04:
with regard to confirming the state or otherwise, that they had to reach into their own position and say that the board acknowledged that, expressly reasoned that, noted that.

[00:07:11] Speaker 04:
And I just wanted to make sure that we're all clear that that was not the board's rationale, no matter how many times they were told.

[00:07:17] Speaker 02:
Can you just say a little bit more about the analysis at Appendix 132, where they quoted extensively from around paragraph 165?

[00:07:25] Speaker 02:
This is the second.

[00:07:26] Speaker 02:
But what is, under our standard of review, which is of course very deferential in this context, what is deficient about what the board is saying in crediting Mr. Brown's analysis?

[00:07:42] Speaker 04:
Yes, so even crediting everything that the board quoted there from Mr. Brown.

[00:07:48] Speaker 04:
All Mr. Brown is saying is don't have them both open at the same time.

[00:07:52] Speaker 04:
And we know that, for example, if you look

[00:07:55] Speaker 03:
would do it serially, and he gave explicit testimony as to why you would do it serially rather than simultaneously.

[00:08:03] Speaker 03:
And serially has a double-closed state, correct?

[00:08:06] Speaker 04:
Serially has a double-closed state, yes.

[00:08:09] Speaker 04:
But respectfully, Your Honor, let's look at his rationale.

[00:08:12] Speaker 04:
If you look at the first block quote,

[00:08:14] Speaker 04:
about halfway down it, he said, by contrast, opening the vent valve first and then followed by closing the vacuum valve.

[00:08:22] Speaker 04:
In other words, if both are open, it would lead to unnecessary loss of fluid.

[00:08:27] Speaker 04:
What he's talking about is if you have a vacuum open and you have vent pushing saline out, they're going to cancel each other out.

[00:08:33] Speaker 04:
That's the inefficiency that he's talking about.

[00:08:36] Speaker 04:
That says nothing about whether you should do simultaneous or whether you should do double closed state.

[00:08:42] Speaker 04:
It doesn't tell you which of those two other worlds you're in.

[00:08:47] Speaker 04:
Respectfully, in the parsing quoted right there.

[00:08:50] Speaker 04:
I didn't call it, but it's there in the record.

[00:08:53] Speaker 04:
Not at any portion that I found that the board quoted or reasoned based on in any way, shape, or form.

[00:09:00] Speaker 04:
All they looked at is the notion that, okay, you wouldn't want to have both open.

[00:09:04] Speaker 04:
Let's accept that.

[00:09:05] Speaker 04:
Let's accept that you wouldn't want to have both open.

[00:09:07] Speaker 04:
The question then is, of the other two worlds I described, are we in a double-closed state allowed or are we in simultaneous operation?

[00:09:14] Speaker 04:
And the board's own reasoning later, so if you turn over to page 133, excuse me, 135, the board there is talking about Plane 6.

[00:09:27] Speaker 04:
And there, the board said that Plane 6 is the one that you want to limit the double closed state to no more than 30 milliseconds.

[00:09:33] Speaker 04:
The board there is saying, we're going to credit Mr. Brown, who says you wouldn't want to have a double closed state.

[00:09:39] Speaker 04:
You would want to minimize the double closed state.

[00:09:41] Speaker 04:
No, no, no.

[00:09:42] Speaker 04:
He didn't say we wouldn't have a double closed state.

[00:09:44] Speaker 04:
He would minimize it.

[00:09:45] Speaker 03:
He would minimize it.

[00:09:46] Speaker 04:
That's not the same thing.

[00:09:47] Speaker 04:
It's not exactly the same.

[00:09:53] Speaker 04:
He said it was inefficient.

[00:09:54] Speaker 04:
The petition said it was inefficient.

[00:09:56] Speaker 04:
And so the logical conclusion of that, if you don't want double open and you think double closed is inefficient such that you would want to minimize it, that pushes you to the middle world where you have simultaneous operation.

[00:10:10] Speaker 04:
If you look at the Teagan paragraphs that I referenced earlier, if anything, they suggest also simultaneous as opposed to sequential operation.

[00:10:21] Speaker 04:
Paragraph 65, for example.

[00:10:23] Speaker 04:
It talks about opening one and closing the other.

[00:10:27] Speaker 04:
And then it says, and then you wait a period of time.

[00:10:29] Speaker 04:
And then you do the reverse.

[00:10:31] Speaker 04:
That's not double-closed state.

[00:10:33] Speaker 04:
That's simultaneous operation.

[00:10:35] Speaker 04:
And so for that reason, the board didn't have any testimony that it reasoned based on or cited why a person of Board of State would want to do a double-closed state.

[00:10:46] Speaker 04:
It simply had none.

[00:10:49] Speaker 03:
Do you agree that they did have testimony before them as to why it would be desirable to have serial operation and not simultaneous?

[00:10:57] Speaker 03:
I think there was a conclusory discussion.

[00:11:00] Speaker 03:
He says in paragraph 68, this isn't the first.

[00:11:04] Speaker 03:
In my opinion, it's far more typical and reliable to conduct serial operations than medical devices.

[00:11:10] Speaker 03:
And he goes on for an entire paragraph explaining why it's a little reliable to do that.

[00:11:15] Speaker 04:
Well, if that was what the board wanted to reason, it could have, but it didn't.

[00:11:20] Speaker 04:
It conspicuously didn't.

[00:11:22] Speaker 04:
Just like it didn't accept the petitioner's rationale that you would want to confirm the state in between changing.

[00:11:29] Speaker 04:
And we put in evidence

[00:11:31] Speaker 04:
why that wouldn't be so.

[00:11:33] Speaker 04:
In the final declaration at paragraphs 163 to 166 in the second IPR, finally explained why you would have no reason to wait because these are solenoid vowels.

[00:11:43] Speaker 04:
You know instantly where they are at all times.

[00:11:45] Speaker 04:
There's no reason to wait.

[00:11:47] Speaker 04:
There's no rationale for safety to wait.

[00:11:50] Speaker 04:
So the bottom line is the Teagan provisionals by the board's own finding, the board's own finding, do not disclose double-closed statements.

[00:11:59] Speaker 04:
So you have to kind of squint and read into it

[00:12:01] Speaker 04:
in some other way, and our submission is that the board had no viable reason for doing that.

[00:12:07] Speaker 02:
So for that...

[00:12:16] Speaker 02:
Do you have a separate argument that would now allow us to affirm with respect to the other IPR, or are they going to rise and fall together?

[00:12:25] Speaker 04:
I think they rise and fall together, although the court could conceivably find an invasive problem in the first one.

[00:12:31] Speaker 04:
And as the court will note in our brief, we only raised invasive as to the first one, because there really was no connecting the dots whatsoever.

[00:12:38] Speaker 04:
But what that does is it undermines the rationale for the second one because the board obviously, or in our view, apparently realized there was a deficiency.

[00:12:51] Speaker 04:
deposition testimony, which we think if you go through it line by line, cuts in exactly the opposite way.

[00:12:57] Speaker 04:
He admitted that none of those paragraphs disclosed the timing of either foul.

[00:13:02] Speaker 04:
None of those paragraphs disclosed doing double closed state versus simultaneous operation.

[00:13:08] Speaker 04:
He admitted that.

[00:13:09] Speaker 04:
Now he says they include both, but we have cases like Arexo and Vertex Vision that says even if you have two alternatives, you have to have some reason for picking one

[00:13:20] Speaker 04:
versus the other, and the board certainly cited none.

[00:13:22] Speaker 03:
There ain't no reason.

[00:13:23] Speaker 03:
But he did give the reason, right?

[00:13:26] Speaker 03:
I mean, you may say the board didn't discuss it enough, but he did give the reason.

[00:13:31] Speaker 04:
Well, in our view, that's fatal.

[00:13:33] Speaker 04:
In our view, that's fatal.

[00:13:34] Speaker 04:
The board needs to tell us, under the Channery principles, what it's relying on.

[00:13:38] Speaker 04:
And it had the opportunity to explain more, and it tried to explain more in the second one.

[00:13:42] Speaker 04:
And even after that second explanation, did not adopt the rationale your honor suggested.

[00:13:47] Speaker 04:
So I think that would be unsupported as well.

[00:13:49] Speaker 03:
They did say serial operation would be obvious, right?

[00:13:53] Speaker 04:
Oh, certainly the board, in conclusory fashion, based on testimony that you wouldn't want to have both open, jumped to the conclusion that you would have a double closed state.

[00:14:02] Speaker 04:
But of course the mere lack of exclusion in the prior art

[00:14:06] Speaker 04:
of something, for example, in the Indo case, doesn't mean you can jump to the conclusion that any of those options within it are obvious.

[00:14:15] Speaker 04:
And I see I'm getting into my rebuttal time.

[00:14:17] Speaker 03:
All right.

[00:14:17] Speaker 04:
We'll give you two minutes.

[00:14:19] Speaker 03:
Thank you, Your Honor.

[00:14:20] Speaker 03:
Mr. Williams.

[00:14:42] Speaker 01:
The board here evaluated very carefully the prior art disclosure as well as the competing expert testimony from both parties' experts about how a person of skill in the art would interpret the disclosure in Teagan and its provisionals, and it made several factual findings, including that the Teagan provisionals themselves disclose and support the double-closed state that is in these claims.

[00:15:06] Speaker 01:
They also found in the alternative that the Teagan provisionals rendered obvious the double-closed state because of the sequential operations that are described there.

[00:15:16] Speaker 01:
Appellate wishes the board made different factual findings, but that's not a proper basis for appeal.

[00:15:20] Speaker 01:
There is certainly substantial evidence from which the board could have concluded that, even just from the disclosures in Teagan provisionals alone.

[00:15:27] Speaker 01:
The first thing I'll point out is that, you know, the pen owner admitted in their great brief of page 5 that the board, I'm quoting, the board found, without support, that the Teagan provisionals, which lack comparable disclosure, disclose a double-closed state.

[00:15:40] Speaker 01:
We certainly agree with the point that the court found that the Teagan provisionals disclosed a double closed state.

[00:15:45] Speaker 01:
That was a factual finding that they made from the Teagan provisionals themselves.

[00:15:49] Speaker 01:
And that's a title to substantial deference on the review.

[00:15:51] Speaker 01:
And that's the end of the case.

[00:15:52] Speaker 01:
There's no need to go further.

[00:15:54] Speaker 02:
What about motivation?

[00:15:56] Speaker 02:
Are you suggesting they didn't also need to find a motivation?

[00:16:01] Speaker 01:
Yes.

[00:16:01] Speaker 01:
I am as to that issue.

[00:16:02] Speaker 01:
I am, because there was two alternative bases.

[00:16:04] Speaker 01:
Look, it's undisputed that Teagan discloses verbatim the claim.

[00:16:07] Speaker 01:
Teagan is essentially a copy of the claim.

[00:16:10] Speaker 01:
Right.

[00:16:10] Speaker 01:
So that is in the Tegan patent itself.

[00:16:12] Speaker 01:
There's no dispute about that.

[00:16:13] Speaker 01:
The only question was, is that section in Tegan supported by Tegan provisionals, which is what the board had to evaluate in the IPR?

[00:16:21] Speaker 01:
And that was the question that was presented to us, which is why you get the analysis that you do in IPR 1.

[00:16:25] Speaker 03:
Hold on a second.

[00:16:27] Speaker 03:
Page 132, this is in the second IPR.

[00:16:30] Speaker 03:
The second IPR, yeah.

[00:16:31] Speaker 03:
They say on top of the page, Mr. Brown,

[00:16:34] Speaker 03:
also provide a testimony to why one skilled in the art world would have been motivated to perform the opening and closing of a house, theoretically, which is a double-closed state, in order to establish a double-closed state, right?

[00:16:45] Speaker 03:
And what the appellant is saying is they didn't cite the right testimony.

[00:16:53] Speaker 03:
Because the testimony that they cite only talks about the disadvantages of being open at the same time.

[00:17:01] Speaker 01:
Right.

[00:17:01] Speaker 01:
Well, I mean, they're responding to a particular argument that was being made by the patent owner as to that testimony.

[00:17:06] Speaker 01:
But if we back up and look, let me just show you where the board actually made these factual findings, because I think it'll make it.

[00:17:12] Speaker 01:
I think it'll answer your question, Judge Doug.

[00:17:14] Speaker 01:
It should be relatively clear.

[00:17:16] Speaker 01:
So the first place to look is in the 253 IPR.

[00:17:20] Speaker 01:
And there, this appears at the bottom, starting at the bottom of 130 and into the top of 131.

[00:17:30] Speaker 01:
So the first sentence in that section of the analysis says, okay, we're going to agree

[00:17:36] Speaker 01:
The provisionals don't have this exact section from Tegan in Column 17.

[00:17:40] Speaker 01:
So that's actually the thing that says, literally, double close date, or two periods of off.

[00:17:44] Speaker 01:
I forget exactly.

[00:17:44] Speaker 01:
But it's very clear that Tegan has that.

[00:17:46] Speaker 01:
So then what they said is, OK, so because that's not verbatim there, we're going to look at the provisionals and see if the provisionals support what Tegan says there.

[00:17:53] Speaker 01:
And their answer is yes.

[00:17:56] Speaker 01:
And they have a whole analysis there.

[00:17:57] Speaker 01:
They say it shows you close it, you open it, in sequence.

[00:18:01] Speaker 01:
And so they say, in a sequence that would result in a double-closed state, so that's one factual finding, then they say, or at least render such a double-closed state obvious for the reasons that Mr. Brown said.

[00:18:13] Speaker 01:
And there they cite Exhibit 1005, and this is Mr. Brown's original declaration testimony, paragraphs 165 to 168.

[00:18:20] Speaker 01:
If you then look, for instance, at what Mr. Brown was saying at those paragraphs, including paragraph 165, you get his

[00:18:29] Speaker 01:
full analysis of this double-closed state.

[00:18:33] Speaker 01:
You also get to look one paragraph before that, his paragraph 164, which has all the rationales for why he gets to that conclusion, including the ones you've already talked about, Judge Dike, which is the benefits of having only one vowel under the time, and to ensure that, and make sure you first go through a state where both vowels are closed.

[00:18:50] Speaker 01:
So that was his reasoning and the board found it persuasive and based on that found both the provisional disclosed double closed state and rendered that double closed state.

[00:19:01] Speaker 01:
obvious.

[00:19:02] Speaker 01:
The same thing is true, by the way, in the TRX3.

[00:19:05] Speaker 01:
Sorry, that wasn't the TRX3 IPR, so we'll move on.

[00:19:09] Speaker 02:
Just before you move on, I think you mentioned 164.

[00:19:11] Speaker 02:
If the board nowhere expressly mentions 164, what allows us to consider it when we're reviewing the board's analysis?

[00:19:19] Speaker 01:
So, in the... I think I might have misspoke because I was intending to quote from the 883 IPR, which does cite

[00:19:31] Speaker 01:
to Paragraphs 162 to 165, so inclusive.

[00:19:36] Speaker 01:
So let me just get you that.

[00:19:38] Speaker 02:
Are we limited, though, to what the board says they rely on?

[00:19:44] Speaker 01:
I mean, in your review of substantial evidence, I'm not sure.

[00:19:49] Speaker 01:
We didn't brief that question.

[00:19:51] Speaker 01:
I would want to think about that.

[00:19:53] Speaker 03:
Well, what they say on, for example, 133 is that Mr. Brown has presented persuasive evidence as to why a person skilled in the art would have been motivated to conduct a battle of operation in a system of disclosed and deemed provisional in its sequential manner.

[00:20:08] Speaker 03:
And it seems to be the case that he did testify to that.

[00:20:15] Speaker 03:
And we have a problem because they didn't cite that specific testimony when they didn't get that general statement about how he testified to it.

[00:20:22] Speaker 01:
Yeah, again, I don't think so.

[00:20:24] Speaker 01:
But again, looking through the securities, are you reading from it?

[00:20:27] Speaker 00:
Well, we're looking at substantial evidence.

[00:20:29] Speaker 00:
Can we look at all of the evidence in the record that supports the factual conclusion, whether they specifically cited it or not?

[00:20:36] Speaker 01:
I think the answer is probably yes.

[00:20:39] Speaker 01:
Again, we didn't brief this in this case, but it seems very likely.

[00:20:42] Speaker 00:
We can't rely on new reasoning.

[00:20:45] Speaker 00:
Correct.

[00:20:46] Speaker 00:
When they make factual findings, we can look at the evidence that was submitted to them, whether they specifically called it out or not to see if it supports it.

[00:20:56] Speaker 00:
Correct.

[00:20:57] Speaker 00:
That's substantial evidence.

[00:20:58] Speaker 00:
That's pretty well on the standard.

[00:20:59] Speaker 01:
That's my understanding of substantial evidence, that you should look at the evidence the board had before it and decide that it had enough evidence to support the conclusions to be reached.

[00:21:07] Speaker 01:
I would say in this case, though, the Bryan Brown testimony

[00:21:11] Speaker 01:
That was irrelevant, because the team provisionals themselves, the board cited and relied on it.

[00:21:16] Speaker 01:
And those team provisionals teach this operation.

[00:21:19] Speaker 03:
It's not irrelevant if we conclude that it's not explicit there, but maybe it's obvious.

[00:21:27] Speaker 01:
Correct.

[00:21:28] Speaker 03:
What did you ask me?

[00:21:29] Speaker 03:
Is there substantial evidence to support the obviousness?

[00:21:32] Speaker 01:
Correct.

[00:21:33] Speaker 01:
Well, there's two questions before this panel.

[00:21:37] Speaker 01:
Was there central evidence to support the board's first finding that Teagan Provisionals themselves teach the double-closed state because of the language they use in describing the operation of the vowels?

[00:21:48] Speaker 01:
The second factual finding they made is the one you just alluded to.

[00:21:53] Speaker 03:
The second one is a bit thinner.

[00:21:55] Speaker 03:
The second one is better supported.

[00:21:58] Speaker 01:
The second one, I think, is easier for me to win on.

[00:21:59] Speaker 01:
I think that's what you're asking me, and I agree with that.

[00:22:02] Speaker 01:
But the first one, I think, is sufficient.

[00:22:04] Speaker 01:
I think even that is a satisfactory substantial evidence test.

[00:22:06] Speaker 01:
Because the board said, look, we've read the team provisional.

[00:22:09] Speaker 01:
We think it's teaching a double close take.

[00:22:11] Speaker 01:
Patterner agrees with that, what the board did.

[00:22:14] Speaker 01:
And I think that's enough, even if Mr. Brown hadn't said a word about any of this in his declaration.

[00:22:18] Speaker 01:
But the fact is that he did say quite a few words about it, and the board cited them all.

[00:22:21] Speaker 01:
And so if you look at page 49 of the appendix, that is the final decision in the 883 case.

[00:22:32] Speaker 01:
And there, Gore made the same factual finding.

[00:22:33] Speaker 01:
And they're incited to Mr. Brown's testimony 162 through 165, which includes that paragraph 164 that I just alluded to, where he goes through sort of why he gets to that conclusion based on these two statements about a marriage.

[00:22:50] Speaker 02:
When you see that, anything else?

[00:22:51] Speaker 02:
Let me ask you that one of their arguments is that your prior art references, as we'll go to the second argument, are silent on the relative timing of the opening and closing of the owls.

[00:23:03] Speaker 02:
Is that true about, or is that at least a clear reading of the prior art references here, and would that matter?

[00:23:10] Speaker 01:
I would disagree with that characterization of them being silent about the operation, because I think, as I said, the board found... Specifically the timing of the operation, how long you'd have the double close.

[00:23:23] Speaker 01:
Oh, I'm sorry, so the deepening time of the particular timing?

[00:23:25] Speaker 01:
Is that the question?

[00:23:26] Speaker 01:
It at least goes to that, with the 30 seconds, I think.

[00:23:28] Speaker 01:
So we had a different argument for the claims that related to particular frequencies, and I'm sorry, for how long the double close date lasts, for instance.

[00:23:37] Speaker 01:
We have relied on another reference, gray, which taught the same idea of a sequence of pulsate, the pause of pulsate again, at a particular frequency.

[00:23:46] Speaker 01:
And Mr. Brown explained that given that frequency, that was within the claimed range of the double closed state, because the double closed state would obviously be less than the total amount of time that that whole cycle took.

[00:23:57] Speaker 01:
So there was certain suspicion that it's in the record based on gray for the origin of the group, but those claims were not satisfied.

[00:24:05] Speaker 03:
Let's coordinate the other questions.

[00:24:12] Speaker 03:
Okay, thank you.

[00:24:13] Speaker 03:
Mr. Tan?

[00:24:19] Speaker 04:
Yes, thank you.

[00:24:21] Speaker 04:
I went back and took a look at the paragraph your honor was referencing from the supplemental declaration and it's really quite short and conclusory and I think it's telling that my friends didn't even see fit to put that in or cite that as evidentiary support.

[00:24:33] Speaker 04:
All that said is Mr. Brown reiterating his opinion and it's at paragraph 68

[00:24:42] Speaker 04:
of his supplemental in the first IPR.

[00:24:46] Speaker 04:
In my opinion, it's far more typical and reliable to conduct serial operations in natural devices.

[00:24:51] Speaker 04:
And the reason he gives is to tell whether the valve is in an open or closed state.

[00:24:56] Speaker 04:
So that again is that whole rationale of confirming whether it's open or closed.

[00:25:01] Speaker 04:
And that is something that they have certainly relied on here more generally, but cited not to the board's rationale adopting that,

[00:25:08] Speaker 04:
but cited to their own petition asserting it.

[00:25:13] Speaker 03:
Well, we have a situation where the board on 103, for example, said Brown testified for the reasons that you'd have serial operations.

[00:25:21] Speaker 03:
Well, in fact, he did in this paragraph very explicitly.

[00:25:25] Speaker 03:
And the argument seems to be, well, they didn't cite that fact.

[00:25:30] Speaker 04:
Well, I think the board didn't.

[00:25:31] Speaker 04:
We know what the board relied on because of pages 31 and 32.

[00:25:35] Speaker 04:
It block quoted the part of Brown that it agreed with.

[00:25:38] Speaker 04:
131, 132.

[00:25:39] Speaker 04:
Excuse me, Your Honor.

[00:25:40] Speaker 04:
Thank you.

[00:25:41] Speaker 04:
131, 132.

[00:25:42] Speaker 04:
And notably, I would point out to the court, in that block quote, there's one thing ellipsed out.

[00:25:48] Speaker 04:
One and only one thing ellipsed out.

[00:25:50] Speaker 04:
That statement that they ellipsed out is Mr. Brown saying you would confirm the statement.

[00:25:55] Speaker 04:
So the board has deliberately omitted that rationale.

[00:25:58] Speaker 04:
Against that backdrop, I don't think a general statement by the board at the end saying, you know, we've looked at all the testimony.

[00:26:04] Speaker 04:
Well, it has looked at the testimony.

[00:26:06] Speaker 03:
It says something more than that.

[00:26:08] Speaker 03:
It says, Mr. Brown, there's quite as to why you'd have serial operation.

[00:26:12] Speaker 04:
Sure, and Mr. Brown did, in the part that they quoted even, say there would be serial operation.

[00:26:17] Speaker 04:
The question is, why?

[00:26:19] Speaker 04:
Is there a reason given why you need serial as opposed to simultaneous?

[00:26:24] Speaker 04:
And in that block quote, he did not.

[00:26:27] Speaker 04:
To answer the court's earlier question in his deposition testimony, he very clearly said, there is nothing

[00:26:33] Speaker 04:
He agreed that there's nothing in the Teagan references that discloses serial as opposed to parallel.

[00:26:40] Speaker 03:
And that's the fundamental problem.

[00:26:48] Speaker 03:
That's permissible, right?

[00:26:50] Speaker 04:
Well, it was entirely conclusory.

[00:26:51] Speaker 04:
Even in the paragraph from the supplemental respectably that Your Honor pointed to, there's no reason given why a person would think he would need to confirm the state.

[00:27:00] Speaker 04:
And our expert, in fact, put in evidence to the contrary.

[00:27:03] Speaker 04:
The board certainly didn't grapple with our counterarguments.

[00:27:06] Speaker 04:
So if that's going to be the rationale, then the board's reasoning is deficient by not grappling with the counterarguments.

[00:27:13] Speaker 04:
So for all those reasons, we think the board's decision should be made.