[00:00:00] Speaker 03:
The first case is Stryker Corporation versus osteomed LLC, number 23-1925.

[00:00:06] Speaker 03:
Miss, can you help me?

[00:00:10] Speaker 03:
Is it Wong?

[00:00:11] Speaker ?:
Wang.

[00:00:11] Speaker 03:
Wang.

[00:00:12] Speaker 03:
OK.

[00:00:12] Speaker 03:
When you're ready.

[00:00:14] Speaker 02:
May it please the court.

[00:00:16] Speaker 02:
This court should reverse on the Slater grounds or in the alternative vacate and remand on the Faulkner grounds.

[00:00:22] Speaker 02:
For the Slater grounds, under any construction of the tensile load limitations, the evidence unambiguously confirms that a

[00:00:29] Speaker 02:
Postita would understand that tensile load limitations are met by the Slater plate, regardless of whether the transfixation screw threads are in the first bone.

[00:00:39] Speaker 02:
There's no substantial evidence to the contrary.

[00:00:42] Speaker 02:
For the Faulkner grounds, there's no substantial evidence that supports the board's finding of no anticipation, because Faulkner expressly describes to a postita a bone plate for use across either a joint or a fracture.

[00:00:56] Speaker 02:
This court recently confirmed in the Sage Products case

[00:00:59] Speaker 02:
that an anticipation analysis is undertaken from the perspective of a Pasita and must take into account the knowledge of such a person.

[00:01:07] Speaker 02:
The board's finding of no anticipation here does no such thing.

[00:01:12] Speaker 02:
So let's talk first about the Slater grounds.

[00:01:16] Speaker 02:
And the dispute is whether Slater discloses the so-called tensile load limitations.

[00:01:21] Speaker 02:
The board already found, with respect to the 085 patent, that Slater anticipates claims one through seven

[00:01:28] Speaker 02:
of 085, which recite the same structural limitations as the challenge claims of the 608, the 776, and the 716 patents, except for without the tensile load limitations.

[00:01:41] Speaker 02:
So the primary question here is what, if any, additional evidence or additional disclosures are required of Slater in order to meet

[00:01:51] Speaker 02:
the tensile load limitations.

[00:01:53] Speaker 04:
And my understanding is your argument is, as long as the structure is there, the tensile load limitation is practiced.

[00:02:01] Speaker 04:
Is that your argument?

[00:02:02] Speaker 02:
That is our first argument.

[00:02:04] Speaker 04:
But even where did you make that argument to the board?

[00:02:07] Speaker 02:
We have made that argument really since the beginning in the petition.

[00:02:11] Speaker 02:
So if you look at our original declaration of Dr. Gall.

[00:02:17] Speaker 02:
Can you give me a page number?

[00:02:19] Speaker 02:
Sure.

[00:02:19] Speaker 02:
It's paragraphs 114.

[00:02:22] Speaker 02:
and 154 of the gall declarations.

[00:02:26] Speaker 02:
And let me see if I can find the appendix sites.

[00:02:32] Speaker 02:
But the point is, since the beginning.

[00:02:35] Speaker 02:
You want to get the appendix sites so we can look at it?

[00:02:42] Speaker 02:
Sure.

[00:02:43] Speaker 02:
I'm sorry.

[00:02:43] Speaker 02:
I'm sorry.

[00:02:44] Speaker 02:
1824 to 1825 is paragraph 114.

[00:02:48] Speaker 02:
And paragraph 154 is 1856 and 1857.

[00:02:56] Speaker 02:
And so in the declaration, Dr. Gall explains that there is a screw head that is abutting the plate.

[00:03:07] Speaker 02:
And those are the structural limitations that are recited in claims 1 and 11 as well.

[00:03:14] Speaker 02:
But as you can see from the way the claims are written,

[00:03:18] Speaker 03:
The claims are written in a way to make it clear that you have this particular structure, so as to... I see that this is describing the structure, but where does it say that structure necessarily performs the other limitation?

[00:03:36] Speaker 02:
I guess the struggle here is that the way Slater describes the actual transfer of tensile

[00:03:45] Speaker 02:
It's really in exactly the same way that the 608 patent describes it, which the 608 patent doesn't describe the transfer of tensile load from the screw to the plate.

[00:03:56] Speaker 02:
It does describe the absorption of tensile load into the screw.

[00:04:02] Speaker 02:
And again, we have to look at this from the viewpoint of a person of ordinary skill in the art.

[00:04:08] Speaker 02:
And a person of ordinary skill in the art understands.

[00:04:10] Speaker 02:
And it's really undisputed, especially when you look at the deposition testimony.

[00:04:15] Speaker 03:
I understand your point is the structures are the same so they must operate in the same way.

[00:04:21] Speaker 03:
Where does it say that?

[00:04:25] Speaker 03:
Rather than just say the structures are the same.

[00:04:27] Speaker 03:
I'm missing that last piece of they must operate in the same way.

[00:04:32] Speaker 02:
So Dr. Gall when he explains what's happening, the first part he talks about the structure with the screw head abutting the plate and then later he talks about

[00:04:43] Speaker 02:
when you have this, and he calls it a vice structure, then the tensile load is going to transfer from the screw into the plate.

[00:04:55] Speaker 02:
So when he talks about what the vice structure is, he's not saying that anyone cares about where the screw threads are.

[00:05:04] Speaker 02:
If you look at those paragraphs 114 and 154, those are

[00:05:08] Speaker 02:
with respect to claim one.

[00:05:10] Speaker 02:
Now, what the board did is say, basically, import limitations from dependent claim nine into claims one and 11 by requiring a particular screw thread structure.

[00:05:22] Speaker 02:
And the problem with that is that's completely inconsistent.

[00:05:26] Speaker 03:
OK, even a tumor with you on that.

[00:05:28] Speaker 03:
You're just saying that this is all, when you're describing how the screw is put through and stuff, and talking about the load, that that has to be read as showing the tensile load limitation.

[00:05:41] Speaker 02:
It does, and it also is exactly how it's described in the patent.

[00:05:46] Speaker 02:
Go ahead.

[00:05:48] Speaker 02:
Please.

[00:05:49] Speaker 02:
Oh, what I was going to say is, what we have is the patent describing the structure with the screw head abutting the plate.

[00:05:59] Speaker 02:
and then talking about, okay, there's tension in the screw, and tension in the screw goes through the screw into the head.

[00:06:06] Speaker 02:
And then there's no discussion in the patent itself about how does the screw, how does the tension from the screw get to the bone plate?

[00:06:15] Speaker 02:
And that's why we have to rely on a person of skill in the art.

[00:06:18] Speaker 03:
Can I just ask you, I feel like I shouldn't be making your argument for you, and maybe I'm missing it, but why aren't you pointing me to 154 specifically and talking about

[00:06:30] Speaker 03:
that the structure enables the transfixion screw to absorb tensile load when the second bone is loaded.

[00:06:39] Speaker 03:
Isn't that exactly what we're talking about, or am I misreading this?

[00:06:42] Speaker 02:
No, you're not misreading it, and I appreciate you with the assist there with respect to 154, because I think that actually makes it clearer.

[00:06:49] Speaker 03:
It makes it a lot more clear than 114.

[00:06:51] Speaker 03:
114 is the structure, which makes a lot of sense.

[00:06:57] Speaker 03:
It's the same structure.

[00:06:58] Speaker 03:
But I think you have to go beyond just saying the structures are the same when there's this other limitation, assuming we find patentable weight in it, which I think we have to, and say why the structure meets that limitation.

[00:07:10] Speaker 02:
And the structure meets that limitation as is set forth in 154 because of it has to.

[00:07:19] Speaker 00:
And again, like the old port.

[00:07:21] Speaker 00:
Let me see if I understand what you're saying.

[00:07:25] Speaker 00:
And with respect to the statement

[00:07:27] Speaker 00:
which I gather you endorse, of the expert, that this has to operate like a vice.

[00:07:33] Speaker 00:
Right?

[00:07:34] Speaker 00:
Yes.

[00:07:34] Speaker 00:
Now, doesn't that depend on whether the screw threads are engaged in the second bone, but not the first?

[00:07:47] Speaker 02:
No.

[00:07:48] Speaker 02:
And I'm very glad you asked that question.

[00:07:50] Speaker 00:
Well, here is my, it seems to me, this is my high school shop class intuition on this.

[00:07:57] Speaker 00:
which is if you have a screw that is either smooth or the hole that goes through the first bone is large enough so that the threads are not engaged in the first bone, fine.

[00:08:12] Speaker 00:
Then when you go into the second bone and you tighten the screw, you have a vice effect.

[00:08:18] Speaker 00:
where the first bone and the second bone are all pushed up against the plate.

[00:08:22] Speaker 00:
But if you have screw threads that engage the first bone and the second bone, then tightening the screw does not reduce the space between the first bone and the second.

[00:08:33] Speaker 00:
That's my problem with the vice characterization of this.

[00:08:37] Speaker 00:
if you understand.

[00:08:38] Speaker 00:
I do.

[00:08:39] Speaker 02:
I understand what you're saying.

[00:08:40] Speaker 02:
And I want to explain it in two different ways.

[00:08:43] Speaker 02:
So first of all.

[00:08:44] Speaker 00:
Well, first of all, am I right in characterizing what goes on if you have screw threads in both the first and engaging both the first and second bone?

[00:08:56] Speaker 00:
You are correct.

[00:08:58] Speaker 02:
But I think the vise.

[00:09:00] Speaker 00:
And therefore no vise.

[00:09:01] Speaker 02:
Well, the vise kind of took on its own life.

[00:09:04] Speaker 02:
And we have to remember that.

[00:09:07] Speaker 00:
You're wedded to the vice theory.

[00:09:10] Speaker 00:
That was what you presented to the board and ultimately to us.

[00:09:14] Speaker 00:
So I'm having trouble seeing why that vice applies to a case in which the threads are engaged in both books.

[00:09:23] Speaker 02:
I first want to point you to the 608 patent.

[00:09:27] Speaker 02:
So appendix 417, column 6, lines 4 to 12.

[00:09:32] Speaker 02:
And that's where the 608 patent describes it doesn't matter

[00:09:37] Speaker 02:
It does not matter where the screw threads are in order to absorb tension into the screw.

[00:09:44] Speaker 02:
And I think we're talking about two different things.

[00:09:45] Speaker 03:
Do you have the win on this argument?

[00:09:47] Speaker 03:
I thought the main thrust of this was that Slater showed a screw going through the first, or in a three-bone thing, the first two bones, and only attaching in the third bone.

[00:10:02] Speaker 02:
Yes, so we don't have to win on the vice in order to win.

[00:10:08] Speaker 02:
Because we still have, there's a lag screw.

[00:10:11] Speaker 02:
And you have to look at the lag screw from the viewpoint of a person of ordinary skill in the art.

[00:10:16] Speaker 02:
And we know that Slater describes a lag screw.

[00:10:20] Speaker 02:
We know that people of skill in the art know how to use a lag screw.

[00:10:24] Speaker 02:
And I actually do want to point you back to, if you look at page five of Ostium's appeal brief, actually in the other case,

[00:10:31] Speaker 02:
When it's talking about the background of bone screws and bone plates with respect to looking at the striker patents, they point to a 1982 manual.

[00:10:43] Speaker 02:
And they're like, look, in this manual, it says, and it quotes from it, it says something about

[00:10:49] Speaker 02:
you have to apply the screw as a lag screw.

[00:10:54] Speaker 03:
Can I just ask you, because I'm a little confused now, do you think Slater shows a lag screw that only engages the final bone and not the first bone or one of its embodiments, which I don't think is anticipatory but might give you a teaching, is the three-bone embodiment?

[00:11:16] Speaker 03:
But does it show that?

[00:11:17] Speaker 03:
It does show that, because it shows a lag screw.

[00:11:20] Speaker 03:
How do we know in Slater that the screw that's going in doesn't engage the first bone?

[00:11:29] Speaker 02:
Two things.

[00:11:30] Speaker 02:
First of all, it doesn't matter if the screw engages the first bone.

[00:11:33] Speaker 02:
And I understand what you're saying about the vice.

[00:11:35] Speaker 03:
Let's just assume we lose on that argument, because I struggle with that argument.

[00:11:39] Speaker 03:
I think what I'm trying to get at is whether Slater shows

[00:11:45] Speaker 03:
that it doesn't engage the first bone, which is what I think their pattern is.

[00:11:49] Speaker 02:
So we have not only that a person of skilly art understands what a lag screw is and understands that the whole point is.

[00:11:55] Speaker 02:
What in Slater?

[00:11:57] Speaker 02:
What in Slater?

[00:11:58] Speaker 02:
The disclosure of the lag screw in figure four.

[00:12:01] Speaker 02:
But then beyond that, Slater goes into it.

[00:12:03] Speaker 00:
Well, lag screws come in all dimensions.

[00:12:06] Speaker 00:
You can have a lag screw that has only a half an inch of smooth, unthreaded portion.

[00:12:12] Speaker 00:
Or you could have one that only has

[00:12:14] Speaker 00:
threads at the very end.

[00:12:16] Speaker 00:
I'm not sure that disclosing a lag screw necessarily gets you over the question of whether, that Judge Hughes is asking, whether Slater shows non-engagement of threads with the first bone in a two-bone structure.

[00:12:32] Speaker 02:
So the two-bone and the three-bone structures are just different pathways.

[00:12:38] Speaker 02:
It's not a different structure.

[00:12:39] Speaker 02:
It's the same bone plate using and putting the screw in

[00:12:43] Speaker 02:
whether you decide you're going to engage three bones or two bones.

[00:12:47] Speaker 02:
But Slater does describe, when it's describing figure four, it describes how to use the lag screw in the sort of more complicated situation where you have two joints.

[00:12:59] Speaker 02:
And so it says there are screw threads that will engage in the calcaneus, and then the shaft slides through the tibia and the talus.

[00:13:07] Speaker 02:
So sliding through, you can't slide through the tibia and talus if you've got some threads engaged.

[00:13:13] Speaker 02:
Okay, so I think it's pretty clear, even if you're not a person of skill in the arts, that the threads are only in the terminal end in the calcaneus.

[00:13:22] Speaker 00:
With respect to the three bone structure.

[00:13:25] Speaker 00:
That sounds like a good basis on which to make an obviousness argument, but anticipation?

[00:13:31] Speaker 02:
Well, it's also anticipated because if you look at what the board said in the 085 patent, it's the 1453 case, the board said that

[00:13:42] Speaker 02:
The disclosures for Slater for the three bone are the same as for the two bones.

[00:13:46] Speaker 02:
So you can't pretend that the specification only applies to the three bone and not to the two bone.

[00:13:54] Speaker 02:
It applies to both.

[00:13:55] Speaker 02:
And so we think it's inconsistent to say, oh, a person of skill in the art is going to know how to use a lag screw for a three bone.

[00:14:04] Speaker 02:
Suddenly, they don't know how to use it for a two-bone.

[00:14:06] Speaker 02:
Why would that be?

[00:14:07] Speaker 02:
A person of skill in the art knows what a lag screw is.

[00:14:10] Speaker 02:
I do want to get back to that original point, though, that there are two different kinds of tensile load that are described in the 608 patent.

[00:14:18] Speaker 02:
So one is the tensile load that is going into the screw when you're walking.

[00:14:25] Speaker 02:
So that external load, when there's a load placed on your joint when you're walking.

[00:14:29] Speaker 02:
That's one kind, and that's the kind that

[00:14:32] Speaker 02:
I was describing in column 6, lines 4 to 12 at appendix 417, where it says in the patent that even if you have screw threads that are in the first bone, there's still going to be the absorption of tensile load into the screw.

[00:14:49] Speaker 02:
So it's a little bit different than the vise, OK?

[00:14:52] Speaker 02:
And so the second kind of tensile load that's described in the patent is the tensile load that you get during surgery.

[00:15:00] Speaker 02:
So when you're actually

[00:15:01] Speaker 02:
screwing the transfixation screw into the bone.

[00:15:05] Speaker 02:
And so as you're screwing the transfixation screw into the bone, the second bone is kind of coming closer to the first bone.

[00:15:11] Speaker 02:
That's the lag effect.

[00:15:12] Speaker 02:
And that's kind of what, Judge Bryson, you were talking about.

[00:15:16] Speaker 03:
OK, Counselor.

[00:15:16] Speaker 03:
You've used all of your time, including your rebuttal time.

[00:15:19] Speaker 03:
We'll restore your rebuttal, because we had a lot of questions.

[00:15:21] Speaker 00:
OK, thank you so much.

[00:15:22] Speaker 03:
I appreciate it.

[00:15:48] Speaker 01:
Good morning.

[00:15:49] Speaker 01:
May it please the court.

[00:15:49] Speaker 01:
My name is Devon Bean, and I represent Osteomed in these appeals.

[00:15:54] Speaker 01:
With respect to the questions, Your Honor, we're asking about where to find this argument below in the record as to whether or not Striker actually had to demonstrate transfer of tensile load through the disclosure of Slater.

[00:16:09] Speaker 01:
It's not in the record below.

[00:16:10] Speaker 01:
That was not a finding that the panel made in the final written decision.

[00:16:16] Speaker 01:
And the citations in Stryker's yellow brief at page seven do not bear out that this was presented well.

[00:16:23] Speaker 04:
So what about paragraph 154 of the Gall declaration?

[00:16:26] Speaker 04:
Why is it that sufficient to put the board on notice they were making this argument?

[00:16:32] Speaker 01:
Because the argument at 154 is that Slater actually discloses that limitation, not that it isn't entitled to patentable weight and doesn't need to be demonstrated at all, and can simply be shown through the necessary

[00:16:46] Speaker 01:
showing of the structure of Slater.

[00:16:49] Speaker 01:
And we dispute that actually Slater discloses all the structural limitations as well.

[00:16:54] Speaker 03:
Are you saying their petition only argued that it didn't have patentable weight, not that Slater actually disclosed it?

[00:17:00] Speaker 03:
Because it seems that portion, if we read it, says it does disclose the tensile loading.

[00:17:07] Speaker 01:
But I think that's exactly what they argued below, Your Honor, is that Slater expressly disclosed the transfer of tensile load limitation.

[00:17:15] Speaker 01:
Now they're telling the court, you don't have to decide whether Slater actually discloses that limitation, because it has to disclose it.

[00:17:24] Speaker 01:
It's not entitled to patentable weight.

[00:17:26] Speaker 01:
You only have to look at the structure.

[00:17:27] Speaker 03:
Those are two different things, that it's not entitled to patentable weight, or it actually discloses it.

[00:17:32] Speaker 01:
Correct.

[00:17:32] Speaker 01:
And that's the point.

[00:17:33] Speaker 01:
Below, they did not raise the argument that it is not entitled to patentable weight.

[00:17:38] Speaker 03:
I don't care about that argument.

[00:17:40] Speaker 03:
I mean, I don't understand that they're resting their case on that it doesn't have patentable weight.

[00:17:44] Speaker 03:
I think their case is they argue that Slater discloses it because it's the same structure and therefore has the same kind of tentacle loading.

[00:17:51] Speaker 03:
And that's what they're arguing, at least in part to me, on appeal.

[00:17:54] Speaker 03:
Why isn't that right?

[00:17:56] Speaker 01:
Because what they point to is the lag screw that only anchors in the calcaneus bone.

[00:18:02] Speaker 01:
And as the board found, for purposes of anticipation, Slater does not have the same disclosure for a two-bone screw.

[00:18:10] Speaker 03:
OK, but that makes no sense to me, honestly.

[00:18:12] Speaker 03:
If it's a three-bone structure or a two-bone structure, it's still talking about the lag screw going through the first two bones and anchoring in the last one.

[00:18:21] Speaker 03:
And in elsewhere, the board says it makes no difference whether it's two bones or three bones.

[00:18:26] Speaker 03:
Why would that make any difference?

[00:18:27] Speaker 03:
If it's going through two bones and anchoring the third, it certainly could go through one bone.

[00:18:32] Speaker 03:
And it talks about it going through.

[00:18:34] Speaker 03:
So clearly, there's enough to suggest that the screw is of the type that goes through the first bone or two and anchors in the third.

[00:18:44] Speaker 03:
Why isn't that anticipatory?

[00:18:46] Speaker 01:
It's not just about transferring tensile load.

[00:18:49] Speaker 01:
It's about transferring tensile load through the head of the screw and into a particular portion of the plate.

[00:18:55] Speaker 01:
And so what Stryker has identified is a vice-like construct that they rely on the three-bone screw.

[00:19:04] Speaker 01:
And they just say transfer of tensile load has happened to the bridge portion of the plate.

[00:19:08] Speaker 01:
That is not disclosed in the express disclosure of Slater.

[00:19:12] Speaker 01:
There is nothing in Slater that talks about load being felt at the bridge portion of the plate at all.

[00:19:18] Speaker 00:
having trouble understanding the significance of this vice-like phenomenon that is described in the expert's testimony and then picked up in the briefs.

[00:19:31] Speaker 00:
What's the relationship between the vice-type function and the tensile load?

[00:19:40] Speaker 01:
The relationship is that below, Stryker used this vice construct to argue that Slater necessarily discloses the transfer of tensile load.

[00:19:52] Speaker 01:
And so because of this vice construct where you're compressing across the joint, that it's necessarily there in the reference itself.

[00:20:01] Speaker 01:
But again, it's not expressly disclosed in Slater.

[00:20:05] Speaker 01:
And not only is it not expressly disclosed, again, there's no disclosure.

[00:20:10] Speaker 01:
for purposes of anticipation that the load would be felt at a particular portion of the plate.

[00:20:16] Speaker 01:
None.

[00:20:16] Speaker 03:
So let me ask you this.

[00:20:17] Speaker 03:
If hypothetically the structures were absolutely identical in every respect, and Slater just didn't say it transfers tensile loading, wouldn't that still anticipate?

[00:20:27] Speaker 03:
I mean, if it's exactly the same structure, it has to work in exactly the same way.

[00:20:32] Speaker 01:
I think if the structures were fully identical, we would have a hard argument.

[00:20:37] Speaker 01:
But the structures are not fully identical.

[00:20:39] Speaker 03:
So what's different?

[00:20:41] Speaker 01:
Between the 608 patent and Slater?

[00:20:44] Speaker 01:
I mean, there's a number of differences.

[00:20:46] Speaker 03:
I don't want to talk about the two versus three bonds, because I don't find that relevant.

[00:20:50] Speaker 03:
What else is different?

[00:20:51] Speaker 01:
The figures in the 608 patent, for example, expressly show where the threads are.

[00:20:57] Speaker 01:
They show what the head of the screw looks like.

[00:21:00] Speaker 03:
OK, but Slater describes a thing where the threads, where it only engages in the final bone.

[00:21:07] Speaker 03:
Let's just assume that's correct hypothetically.

[00:21:09] Speaker 03:
Then the threads, even if they're further up, if they're sliding through, it doesn't really matter whether they're further up, as long as they only engage in the bottom, right?

[00:21:20] Speaker 01:
The 608 patent also describes and shows what the head of the screw looks like and how it engages with the hole that is disclosed in the 608 patent figures as well.

[00:21:30] Speaker 03:
And I think it's- What does that mean?

[00:21:33] Speaker 01:
One of the key features is that the tensile load is transferred through the head and the engagement between the head and the hole would help with that, including by creating- You mean the screw fits into the hole and the head is at the top on the plate?

[00:21:47] Speaker 01:
And the way that it engages- You don't think Slater shows that?

[00:21:50] Speaker 03:
It doesn't show that.

[00:21:51] Speaker 03:
It describes, at least in words, that the screw goes through a hole and only engages in the second bone or the third bone.

[00:22:03] Speaker 03:
I mean, I don't understand.

[00:22:05] Speaker 03:
It seems to me like you and the board have required almost word-for-word description to anticipate, and that isn't our law.

[00:22:18] Speaker 03:
I don't believe that we've required that, but I think you can't turn to the... Can you explain to me why this... When you're talking about the head engaging, are you talking about anything different than the screw goes in and is tightened and rests on the plate?

[00:22:35] Speaker 01:
In a concave formation that absorbs the load into the bridge portion of the plate, which is not disclosed in Slater.

[00:22:42] Speaker 03:
Did the board rely on the fact that it wasn't concave?

[00:22:46] Speaker 01:
I don't believe they did, Your Honor.

[00:22:47] Speaker 03:
Well, then that's not good enough.

[00:22:52] Speaker 03:
The board relied on the two versus three, right?

[00:22:54] Speaker 01:
Correct.

[00:22:54] Speaker 03:
Which I don't find convincing.

[00:22:58] Speaker 03:
What else did the board rely on?

[00:22:59] Speaker 03:
The board also described the finite element analysis in Slater and how when... Do we need that if we find that the structures are the same and it goes through and only engages in the last one and we read paragraph 154 as designating a tensile load transfer?

[00:23:16] Speaker 01:
I think you do need it because the finite element analysis shows that when that plate was tested, that the load was felt above the screw formation and not at the bridge portion of the plate.

[00:23:27] Speaker 01:
And I would direct your honors to that disclosure of Slater.

[00:23:32] Speaker 01:
When it's discussing the finite element analysis at APPX 2510, it describes that the force stress was the highest stress was felt just above the angled screw formation, which is not the bridge portion of the plate.

[00:23:52] Speaker 01:
And then Striker comes back and says, well, it's felt throughout the entire plate.

[00:23:56] Speaker 01:
But again, that's not anticipation.

[00:23:59] Speaker 01:
The disclosure here says that's not where it's felt.

[00:24:02] Speaker 01:
And in fact, when it used a lag screw and they tried to test the plate, the plate failed.

[00:24:09] Speaker 01:
And so we have disclosure of, to the extent you agree that there is disclosure of the transfer of tensile load through the head of the plate, it's above the screw formation and not at the portion that is claimed in the 608 pen.

[00:24:26] Speaker 04:
Let me try to tell you what I think you're arguing and help me if I've got this right.

[00:24:31] Speaker 04:
You're saying that the argument that the petitioner made to the board about Slater was that Slater discloses a vice-like structure

[00:24:42] Speaker 04:
And the board looked for advice like structure and slater and didn't really find it.

[00:24:47] Speaker 04:
Correct?

[00:24:48] Speaker 01:
Correct.

[00:24:48] Speaker 04:
And you say there's substantial evidence to support that.

[00:24:51] Speaker 01:
Correct.

[00:24:52] Speaker 04:
Maybe they didn't have to make that argument, but that's the argument they made.

[00:24:55] Speaker 01:
And that's the only argument that they made to try and satisfy this limitation.

[00:24:59] Speaker 04:
And your further argument, if I understand it correctly, that they are now arguing to us that the structures are identical.

[00:25:10] Speaker 04:
in Slater and in the challenge claims.

[00:25:15] Speaker 04:
And therefore, inherently and necessarily, the transfer of tensile load has to happen.

[00:25:20] Speaker 04:
But they never made that argument to the board.

[00:25:22] Speaker 01:
And they also never made an inherent anticipation argument to the board.

[00:25:26] Speaker 04:
So what I'm hearing is, to put it simply, you think maybe the science is totally on their side.

[00:25:34] Speaker 04:
They're right about everything they're saying about the physics.

[00:25:37] Speaker 04:
But you don't really care, and we shouldn't care, because they didn't make the legal arguments below that they needed to preserve those arguments in front of us.

[00:25:44] Speaker 04:
Is that basically what you're saying?

[00:25:46] Speaker 01:
That's correct.

[00:25:47] Speaker 01:
Much more articulate.

[00:25:48] Speaker 04:
Well, I don't know if it's articulate or not, but wouldn't it be strange for us to say, essentially, they're right about everything they're saying about the physics, and the board should have understood that.

[00:26:01] Speaker 04:
Wouldn't it be weird for us to affirm the board based on these sort of legal technicalities when we'd be sort of blessing the wrong science?

[00:26:12] Speaker 01:
I don't think that it would be wrong at all, because it's the petitioner's job below to present the arguments in the way and in the right legal framework to allow for the board to render that decision.

[00:26:26] Speaker 01:
And anticipation was not the right framework here.

[00:26:29] Speaker 03:
Where do you argue in your red brief that there should be confined to the vice argument and not their argument that Slater has on the structure?

[00:26:45] Speaker 01:
I believe we argued in our red brief that they've waived that argument.

[00:27:04] Speaker 00:
Are you talking about 26 of your red tape?

[00:27:09] Speaker 01:
Yes, Your Honor.

[00:27:14] Speaker 03:
Well, that's the patentable weight argument.

[00:27:16] Speaker 03:
That's not that the structures are the same argument and therefore show the tensile load.

[00:27:23] Speaker 03:
I mean, that you address it on page 27, starting with letter B. And I don't see any waiver argument there.

[00:27:31] Speaker 03:
I just see you arguing that.

[00:27:34] Speaker 03:
But the board argued that they relied on two different things to show anticipation.

[00:27:41] Speaker 01:
We argue at pages, starting on page 21 of our red brief, that the appellants sought to meet the transfer of tensile load through the vice-like construct, a concept not disclosed since later.

[00:27:52] Speaker 01:
We argue that they are now saying it's inherent, but that argument was waived below.

[00:28:02] Speaker 03:
And then we just understand them to be making it necessarily an inherently argument per se because they pointed to page one fifty four or one paragraph one fifty four that you don't have to get to inherently actually describes how Slater operates to do the tensile load.

[00:28:18] Speaker 01:
And on page twenty three of our red brief we argue that because Slater lacks the necessary disclosure that the board found

[00:28:25] Speaker 01:
The appellants offered no other basis to demonstrate that their relied upon Slater embodiment disclosed the transfer of load limitations.

[00:28:33] Speaker 01:
And therefore, they failed to meet their burden.

[00:28:35] Speaker 03:
I don't really understand what's going on here.

[00:28:37] Speaker 03:
I mean, isn't there a way of arguing that it's advice like structure, their way of saying, and which you addressed on the merits, that Slater discloses a lag screw that goes through the first bone and only anchors in the second bone?

[00:28:56] Speaker 01:
That's the argument that they are making.

[00:28:59] Speaker 01:
Correct.

[00:29:00] Speaker 03:
Right.

[00:29:01] Speaker 03:
So we can address that argument.

[00:29:03] Speaker 01:
And they also argue in their yellow brand.

[00:29:05] Speaker 03:
And how does Slater not show that the lag screw goes through the first bone and anchors only in the second bone?

[00:29:14] Speaker 01:
It's not clear that that's true or not, and I would point out ours to... Why not?

[00:29:18] Speaker 03:
There's a statement that says the screw goes through these bones and anchors in the third one.

[00:29:24] Speaker 01:
At page 14 of Stryker's Yellow Reef, they argued, even where a small portion of the threads of the lag screw engaged the taker bone.

[00:29:32] Speaker 03:
They make an alternative argument, but Slater on its face has discussion of a screw going through a bone.

[00:29:41] Speaker 03:
Through means through, not only partially through and engaging in the funnel bone.

[00:29:47] Speaker 03:
That would show

[00:29:49] Speaker 03:
the structure of your patent, wouldn't it?

[00:29:51] Speaker 03:
If it goes through the first bone, and I know you want to talk about the screw head, that's fine.

[00:29:56] Speaker 03:
But if we're talking about anchoring in the bottom bone, that shows it, doesn't it?

[00:30:01] Speaker 01:
Not to the point where there would be transfer of load into the bridge portion of the blade.

[00:30:06] Speaker 03:
OK.

[00:30:06] Speaker 00:
But the bridge portion is the point you were making earlier is the key, it seems to me, to the answer you just gave to Jeff Hughes, right?

[00:30:16] Speaker 00:
Correct.

[00:30:16] Speaker 00:
So if it were anchored in the bridge portion,

[00:30:21] Speaker 00:
Judge Hughes' question, the answer to Judge Hughes' question would be yes.

[00:30:25] Speaker 01:
Perhaps, but that's also not disclosed since later.

[00:30:30] Speaker 03:
OK, we've had a lot of questions.

[00:30:32] Speaker 03:
This is the one you have a cross appeal in, right?

[00:30:34] Speaker 05:
Yes.

[00:30:35] Speaker 03:
Do you want to talk about it?

[00:30:36] Speaker 03:
Briefly, just to preserve your right to reply on it, you get as brief as possible.

[00:30:47] Speaker 03:
You can always feel free to rest on your briefs, too.

[00:30:51] Speaker 01:
Briefly on the 1453 proceeding relating to the 085, the board found that Slater anticipated claims one to seven, and those claims require that the hole defining the transfixation screw hole is at the bridge portion of the bridge portion.

[00:31:06] Speaker 01:
It's a particular location of the bridge portion.

[00:31:11] Speaker 01:
And the board concluded that the Slater hole that Stryker relies on is adjacent the bridge portion.

[00:31:18] Speaker 01:
but improperly read out the requirement that it be at the thickened portion of the bridge portion.

[00:31:24] Speaker 01:
Strager argues in their briefing that we are trying to claim or read out the preferred embodiment, but the specification of the 608 patent discusses that the bridge portion 130 may include a thickened section 136.

[00:31:39] Speaker 01:
That's at APPX 460, column 8, lines 32 to 41.

[00:31:45] Speaker 01:
And the hole may be on the thickened portion 136.

[00:31:48] Speaker 01:
So you have disclosure in the specification that the hole can be on the thickened portion 136.

[00:31:55] Speaker 01:
The thickened portion can be part of the bridge portion 130.

[00:31:58] Speaker 01:
And so we believe it's consistent with the

[00:32:02] Speaker 01:
Claim language in the 085 that specifically requires at the thickened section and the board's finding that it's simply At or adjacent the bridge portion does not address the actual claim language And so for that reason we believe the board's decision on those claims must be reversed Thank you

[00:32:37] Speaker 02:
I just want to answer just a couple things that I was not able to find in my notes in the first place.

[00:32:43] Speaker 02:
Appendix 1107, our reply introduction below, is where we, that's like the first thing we say, is that the patent owner is relying heavily on functional limitations and statements of intended use.

[00:32:56] Speaker 02:
So I just want to make sure that you're aware that we don't think that there's any kind of waiver.

[00:33:00] Speaker 02:
We feel like we've made the same argument the entire time.

[00:33:03] Speaker 02:
I also want to point

[00:33:06] Speaker 02:
Column 6, appendix 417, column 6, lines 45 to 50, just to emphasize this point, that when you're talking about the loading that happens when you're walking, nobody cares what kind of screw it is.

[00:33:21] Speaker 02:
Nobody cares if it's a lag screw or not.

[00:33:23] Speaker 02:
The patent itself says, the transfixation screw may be any component of hardware having a head, 152, configured to abut the surface of the bone plate and a shaft operable

[00:33:36] Speaker 02:
to secure the bones together.

[00:33:37] Speaker 02:
That is all you need when you're talking about the external loading.

[00:33:42] Speaker 02:
And that's different than the lag effect that we're talking about.

[00:33:46] Speaker 03:
Can I just ask you to address?

[00:33:48] Speaker 03:
So assume I'm with you on that there's a screw that goes through the first bone and only engages the second one.

[00:33:56] Speaker 03:
I assume that seemed to make the argument that it still doesn't anticipate because it doesn't show precisely how the head hits the plate and absorbs the load.

[00:34:07] Speaker 03:
What's your response to that?

[00:34:08] Speaker 02:
A response to that.

[00:34:09] Speaker 02:
And we cited to a lot of expert testimony there.

[00:34:13] Speaker 02:
And I think I'm going to go to the finite element analysis there.

[00:34:16] Speaker 03:
Well, can you perhaps answer it without that?

[00:34:20] Speaker 03:
Because the board rejected that.

[00:34:23] Speaker 03:
And that's a substantial evidence question too, which I think you're vulnerable on.

[00:34:27] Speaker 02:
OK.

[00:34:29] Speaker 02:
The very fact that the tensile load is going to the area where the screw is

[00:34:35] Speaker 02:
And Council for Osteomed argues, oh, it's going above the screw hole or the screw head.

[00:34:41] Speaker 02:
And that's not what the bridge is.

[00:34:44] Speaker 02:
This is not a monolithic plate.

[00:34:46] Speaker 02:
So we have testimony from Dr. Gall explaining that a person of skill in the art would have understood that tensile load can't be transferred just to the region above the screw hole without also going to the bridge, because this is not some kind of weird magic plate.

[00:35:03] Speaker 02:
where the tensile load can stop.

[00:35:06] Speaker 02:
It's going to go.

[00:35:07] Speaker 02:
If it goes there above the screw hole, it's going into the bridge.

[00:35:11] Speaker 02:
And so appendix 3034, the Gall declaration at paragraph 49, and also the Gall reply declaration at paragraph 45 at 3031 to 3032 explains that.

[00:35:24] Speaker 03:
Did the board also rely on this argument that they didn't show where the load was transferred to the screw head?

[00:35:33] Speaker 02:
I don't remember them really.

[00:35:35] Speaker 03:
It feels like the board mostly relied on the fact that it was the difference between two or three bones and that you didn't necessarily show that Slater showed that the screw only engaged the bottom bone.

[00:35:49] Speaker 02:
I think that's what the board decision kind of comes to.

[00:35:51] Speaker 03:
The latter is just wrong, I think.

[00:35:53] Speaker 03:
Or at least I think.

[00:35:55] Speaker 02:
I agree.

[00:35:55] Speaker 03:
There's a statement that says the screw goes through bones and engages the last one.

[00:36:00] Speaker 03:
So at least there's an explicit disclosure of not engaging the first bone.

[00:36:05] Speaker 03:
I think that's where they try to get, to me, a little too cute and say, well, it shows it with three bones, but it doesn't show it with two.

[00:36:11] Speaker 03:
I don't understand that at all.

[00:36:13] Speaker 03:
But did they also rely on this other point that even if Slater discloses all that, it still doesn't disclose the loading requirement about how it transfers the load to the screw?

[00:36:25] Speaker 02:
The load from the screw into the bridge?

[00:36:27] Speaker 02:
Yeah.

[00:36:28] Speaker 02:
I don't think so.

[00:36:29] Speaker 02:
I don't think they really talked about that much.

[00:36:32] Speaker 02:
And to the extent they did, I'm pointing you to this again.

[00:36:35] Speaker 02:
Slater is not a magic plate.

[00:36:37] Speaker 02:
It's not something where somehow the tensile load can just stop.

[00:36:41] Speaker 02:
and only be concentrated in one spot.

[00:36:44] Speaker 00:
It's going to go to the bridge.

[00:36:45] Speaker 00:
But it seems to me pretty clear that if you have the screw coming in, let's say, at the very tip of the plate, that's where the principal tensile load is going to be dissipated.

[00:36:58] Speaker 00:
Yeah, it may have some effect downstream to the other end of the plate, but a lot less than the tensile load that's picked up by the area of the plate right around the screw.

[00:37:09] Speaker 00:
It just makes sense, right?

[00:37:10] Speaker 00:
That makes sense.

[00:37:11] Speaker 00:
You wouldn't disagree with that.

[00:37:12] Speaker 02:
I wouldn't necessarily disagree with that, but it doesn't matter for the claims.

[00:37:16] Speaker 02:
The claims don't care how much tensile load is transferred.

[00:37:19] Speaker 02:
It doesn't say anything about it's got to be 100% of the tensile load or most of the tensile load.

[00:37:24] Speaker 02:
It just says, so as to transfer.

[00:37:26] Speaker 04:
I understood your lead argument in your blue break to us to be the claim structure results in the transfer of tensile load, which I read to mean that you're saying there is no patentable weight to the tensile load limitations.

[00:37:40] Speaker 04:
that it inherently follows that claim limitation is satisfied as long as you have the structure.

[00:37:48] Speaker 02:
Did I understand your lead argument correctly to us, or did I not?

[00:37:52] Speaker 02:
I mean, our lead argument is that the structural limitations that are recited in the claims are in Slater.

[00:37:59] Speaker 02:
It's undisputed.

[00:38:01] Speaker 02:
And those structural limitations, when you've got that through- We're talking about the tensile load limitation.

[00:38:05] Speaker 02:
Yeah, we think it's the same.

[00:38:07] Speaker 02:
That happens because of the structure.

[00:38:08] Speaker 02:
Isn't that because of the inherency?

[00:38:10] Speaker 02:
It's not because of inherency, it's because a person of skill in the art understands that when you have that structure, that's necessarily going to happen.

[00:38:18] Speaker 00:
That's a nice distinction.

[00:38:19] Speaker 00:
I'm not sure how well that holds up.

[00:38:22] Speaker 04:
Go ahead.

[00:38:23] Speaker 04:
If I read it that way, and if you have more to say, I didn't mean to cut you off, I'm sorry, but I know we're short on time.

[00:38:30] Speaker 04:
Where in your petition do you argue that it's necessary, it's inherent?

[00:38:36] Speaker 04:
All you need to worry about is the structure.

[00:38:38] Speaker 04:
And as long as you have the structure, you practice the tensile load of limitation.

[00:38:42] Speaker 02:
And again, I think what Dr. Gall said.

[00:38:46] Speaker 02:
You gave me the Gall Declaration about that.

[00:38:49] Speaker 04:
Where is it in the petition?

[00:38:52] Speaker 02:
In the reply at 1107.

[00:38:54] Speaker 02:
So it's not in the petition?

[00:38:56] Speaker 02:
In the petition itself, I think maybe it's not

[00:38:59] Speaker 02:
It's more implied, because we talk about the structure.

[00:39:02] Speaker 02:
And then let me ask you this.

[00:39:05] Speaker 04:
As I understand what the board did, as I said to your friend on the other side, you told the board, Slater anticipates because of the vice-like structure.

[00:39:15] Speaker 04:
So board, go and find the vice-like structure in Slater.

[00:39:19] Speaker 04:
The board looked, and their reading of Slater was, it doesn't disclose the vice-like structure.

[00:39:26] Speaker 04:
Is that the way that the board understood your argument?

[00:39:29] Speaker 02:
I think the board was led astray by osteomed making the argument that our entire petition depends on the vise having threads only in the second bone.

[00:39:44] Speaker 02:
But if you look at what we argue, nobody talks about where the threads are.

[00:39:49] Speaker 02:
It's it's not in the gall declaration when talking about the independent claims 1 and 11 We do not think it's a fair reading of the petition at all, okay.

[00:40:01] Speaker 03:
Thank you Your time is expired.

[00:40:04] Speaker 03:
She didn't talk about the cross-appeal so you have nothing to reply to cases submitted.

[00:40:09] Speaker 03:
Thank you