[00:00:00] Speaker 04:
The next case is Striker European Operations versus Osteomed.

[00:00:06] Speaker 04:
Case number 23-2397.

[00:00:07] Speaker 04:
When you're ready.

[00:00:10] Speaker 02:
May it please the court?

[00:00:12] Speaker 02:
The board's obviousness findings should be reversed for three reasons.

[00:00:16] Speaker 02:
For both the 713 and the 751 patent, the board construed the angled hole limitation in a manner that doesn't require the hole itself.

[00:00:25] Speaker 02:
to be angled.

[00:00:26] Speaker 02:
And this contradicts the plain language of the claims and the patent specification, which differentiate between an angled tab and an angled hole embodiment.

[00:00:35] Speaker 02:
For the 751 patent, the board rejected Stryker's definition of the claim term between, but instead just erroneously compared a mirror image of figure five of Arnold to figure two of the 751 patent instead of comparing Arnold to the claim language.

[00:00:54] Speaker 02:
And then for all of the challenge claims for both the 713 and the 751 patent, the board's motivation to combine Arnold and Zahiri basically hinges on the conclusory testimony of Ostumet's expert, Mr. Sherman, who testified that there are no practical differences between joint fusion and fracture fixation.

[00:01:14] Speaker 02:
And Positas have been using such bone plates interchangeably for decades.

[00:01:19] Speaker 02:
And this is really the opposite position.

[00:01:22] Speaker 02:
that Ostiumet took in IPRs that we were just talking about involving its own patents where it argued that extensive modifications would be needed for the exact same Faulkner plate to be used for joint fusion despite Faulkner's expressed disclosures to the contrary.

[00:01:38] Speaker 02:
and so we don't think we should be able to have it.

[00:01:41] Speaker 04:
If we agree with the board on Stryker and Arnold and Zahiri that there was sufficient motivation to combine, we don't have to reach all those other claim construction arguments, do we?

[00:01:56] Speaker 02:
You're talking about the other?

[00:01:57] Speaker 04:
The Arnold and Zahiri combination, does that get rid of basically everything?

[00:02:04] Speaker 02:
I'm sorry, say that again.

[00:02:07] Speaker 04:
In this case, the board found that Arnold, in light of Zahiri, disclosed everything.

[00:02:13] Speaker 00:
That was an alternative to Arnold by itself.

[00:02:16] Speaker 02:
Yes.

[00:02:17] Speaker 00:
So you were addressing Arnold by itself earlier, briefly.

[00:02:21] Speaker 00:
Okay.

[00:02:21] Speaker 00:
But going to Arnold plus Zahiri, I had the exact same question.

[00:02:25] Speaker 04:
Arnold and Zahiri, if the board is right that Arnold and Zahiri, that there's a motivation to come on them, it discloses everything, right?

[00:02:33] Speaker 02:
then yes, but the problem is there's no motivation.

[00:02:37] Speaker 04:
But that's what I'm asking.

[00:02:38] Speaker 04:
I know you don't think there's motivation to find.

[00:02:40] Speaker 04:
The board did.

[00:02:41] Speaker 04:
It relied on a statement that is pretty thin, but we have to decide whether it's substantial evidence under our case law or not.

[00:02:49] Speaker 04:
I just want to know if I think that is, whether I need to reach anything else.

[00:02:55] Speaker 04:
And the answer, I think, is I don't.

[00:02:57] Speaker 02:
I don't think you do, but I hope that you do.

[00:03:00] Speaker 02:
I know you disagree, but yes.

[00:03:03] Speaker 02:
Yes.

[00:03:03] Speaker 02:
And so if we can go first to the angled hole.

[00:03:10] Speaker 04:
Go ahead.

[00:03:11] Speaker 04:
I think you would read the room a little and maybe go to the motivation to come on.

[00:03:20] Speaker 00:
The angled hole, let's assume that you're right.

[00:03:23] Speaker 00:
that Arnold does not disclose an angled hole.

[00:03:26] Speaker 00:
All that discloses is angled tabs with straight holes.

[00:03:31] Speaker 00:
Yes.

[00:03:32] Speaker 00:
OK.

[00:03:33] Speaker 00:
Now you're at Zahiri plus Arnold, which is where I think we've been.

[00:03:36] Speaker 02:
And you're correct that we're not disputing that Zahiri certainly shows an angled hole.

[00:03:42] Speaker 02:
But what we are disputing is there isn't substantial evidence to support the combination.

[00:03:47] Speaker 02:
The reason?

[00:03:48] Speaker 02:
We know that there's the conclusory statement of Mr. Sherman.

[00:03:51] Speaker 02:
The conclusory statement of Mr. Sherman is not substantial evidence, because first of all, totally not tethered to the facts of this case.

[00:03:59] Speaker 02:
He just makes this blanket statement that doesn't even really apply.

[00:04:03] Speaker 02:
He doesn't explain how it applies to Arnold or to Zahiri.

[00:04:06] Speaker 02:
He doesn't explain.

[00:04:06] Speaker 04:
Well, can we look at it?

[00:04:07] Speaker 04:
I read it, and I thought he said a skilled artisan would improve Arnold by using Zahiri.

[00:04:14] Speaker 02:
He says that, but how?

[00:04:15] Speaker 02:
How is that going to happen?

[00:04:18] Speaker 02:
And the board is relying on a statement where he says,

[00:04:21] Speaker 02:
These things have been used interchangeably for decades.

[00:04:24] Speaker 02:
They're not making an interchangeability argument.

[00:04:27] Speaker 02:
They're not saying that they were interchanged.

[00:04:30] Speaker 04:
They just have to show a motivation combined.

[00:04:32] Speaker 04:
And if this is a well-known field where you can use different plates from different things, and this structure in Zahiri would improve Arnold, then why isn't that enough?

[00:04:44] Speaker 02:
It isn't enough, not only because it's not tethered to the facts of the case, his testimony,

[00:04:49] Speaker 02:
It was also contradicted by unrebutted testimony from Dr. Holt.

[00:04:53] Speaker 04:
Well, that doesn't matter for substantial evidence, right?

[00:04:55] Speaker 04:
I mean, it is testimony.

[00:04:57] Speaker 04:
I know you think it's conclusory.

[00:04:58] Speaker 04:
But if we think it's not conclusory, then it's substantial evidence.

[00:05:03] Speaker 02:
I don't think it's substantial evidence either, because I think the case law does require the board to look at the entire record, including things that are against.

[00:05:12] Speaker 04:
Sure, but the board can do it.

[00:05:13] Speaker 04:
But that's not our job.

[00:05:14] Speaker 04:
If we have, let's just assume we think his case

[00:05:18] Speaker 04:
Testimony is not conclusive.

[00:05:20] Speaker 04:
That's a hard question.

[00:05:21] Speaker 04:
And I'm sure we're going to have some question for Ostium Ed's counsel about this.

[00:05:27] Speaker 04:
But let's just assume it is substantial evidence for motivation combined.

[00:05:32] Speaker 04:
Then you have other evidence.

[00:05:34] Speaker 04:
The board waited and went with their evidence.

[00:05:36] Speaker 04:
We can't overturn that, can we?

[00:05:39] Speaker 02:
Well, I think there's other ways that you can overturn.

[00:05:42] Speaker 02:
For example, there was no evidence provided by Ostium Ed

[00:05:47] Speaker 02:
with respect to a reasonable expectation of success.

[00:05:50] Speaker 02:
So they just provided no evidence.

[00:05:52] Speaker 04:
OK, but that doesn't go to motivation and goodbyes.

[00:05:54] Speaker 02:
Yeah, but it still has to be shown.

[00:05:56] Speaker 02:
You have to show a reasonable expectation of success.

[00:05:59] Speaker 02:
And they did not.

[00:05:59] Speaker 02:
They didn't even try to.

[00:06:01] Speaker 02:
And we, in our rebuttal, we did provide testimony demonstrating why a casita would not have had a reasonable success in combining Arnold and Zahiri.

[00:06:13] Speaker 02:
And they didn't rebut it.

[00:06:14] Speaker 02:
They did nothing.

[00:06:15] Speaker 02:
They had the opportunity.

[00:06:16] Speaker 02:
to submit a reply declaration and address these important questions as to why this very broad statement from Mr. Sherman about interchangeability does not apply to Arnold and Sahiri.

[00:06:29] Speaker 02:
And they didn't provide any testimony whatsoever.

[00:06:33] Speaker 02:
And what we saw happen is the board on its own making its own fact finding that this is pretty minor, minor change to the Arnold plate sticking this

[00:06:43] Speaker 02:
extremely, you know, a fixed angle guide plate hole into the leg of Arnold.

[00:06:52] Speaker 02:
They're like, that's no big deal.

[00:06:54] Speaker 02:
There's no indication that wouldn't work.

[00:06:56] Speaker 02:
And that's not a proper analysis.

[00:06:59] Speaker 03:
The board doesn't get to just... If not, I mean, if they made that finding based on the totality of the evidence that was in front of them, why are they not allowed to do that as fact-finders?

[00:07:09] Speaker 02:
We, they can't, there was nothing that Osteomed said.

[00:07:13] Speaker 02:
There was no evidence where Osteomed said anything along the lines of, that'd be easy.

[00:07:19] Speaker 02:
You could easily do that.

[00:07:21] Speaker 02:
And it's just, it's not supported by evidence.

[00:07:23] Speaker 03:
It's, you know, they made the- Is your concern that Osteomed as the petitioner in this case didn't make the argument and the board's making an argument for them?

[00:07:33] Speaker 03:
Or is it that there's just simply no evidence, not even substantial evidence to support the board's finding?

[00:07:39] Speaker 02:
It's both.

[00:07:40] Speaker 02:
It's both.

[00:07:41] Speaker 02:
Because we think all they're relying on, and they say what they're relying on.

[00:07:44] Speaker 02:
They say, we're crediting this testimony about interchangeability from Mr. Sherman.

[00:07:50] Speaker 04:
Well, so if OsteoMed had actually said, at some point, there's a reasonable expectation of success because everybody knows these things are interchangeable, then would that be enough for them to have made the argument?

[00:08:05] Speaker 04:
And then if so, would that be substantial evidence?

[00:08:08] Speaker 02:
No, because it's just saying that it's trivial or just saying that, oh, you would have a reasonable expectation of success on its own.

[00:08:17] Speaker 02:
You have to actually dig in and look at why would it be that a person of skill in the art would take this angled hole of Zahiri and stick it on the leg of Arnold?

[00:08:28] Speaker 02:
They didn't rebut the opinions of our experts who explained

[00:08:34] Speaker 02:
If you were to do that, suddenly, you're not going to have a leg that moves.

[00:08:39] Speaker 02:
The board is assuming that you're still going to have the leg on the Arnold plate that is offset.

[00:08:45] Speaker 02:
And it's intended to wrap around the phalangeal epiphysis.

[00:08:49] Speaker 04:
And so it's intended to be- You're veering very close to our case law that says you don't have to show how the two references physically work together.

[00:08:58] Speaker 04:
And obviously, they didn't have to do that.

[00:09:00] Speaker 02:
That is true.

[00:09:01] Speaker 02:
They don't have to show how they physically work together.

[00:09:04] Speaker 02:
How would you, how would you accomplish it?

[00:09:09] Speaker 02:
But the point is the petitioner has to describe.

[00:09:13] Speaker 02:
What would motivate someone to do such a thing, and why would it work?

[00:09:17] Speaker 04:
What isn't the motivation that this hole in Zahiri that's angled works better and will improve Arnold, and you just incorporate that hole?

[00:09:26] Speaker 04:
We've affirmed that kind of reasoning many times in the past.

[00:09:29] Speaker 04:
Isn't that the reasoning we have here?

[00:09:31] Speaker 02:
I think part of what makes this such an interesting and unique situation is that what Zahiri teaches is it's a very specific kind of plate.

[00:09:43] Speaker 02:
that it cares very much about precision.

[00:09:46] Speaker 04:
Do we care about that though?

[00:09:47] Speaker 04:
I think we don't care about that because what we're looking to for Zahiri is the angled hole and I think we've said we don't have to look at all the rest of it because that's that kind of sounds like that again you wouldn't take all of Zahiri and make it work with all of Arnold but all you're taking from Zahiri is the angled hole.

[00:10:09] Speaker 02:
But the board was very clear that it's taking the

[00:10:12] Speaker 02:
the angled hole configuration of Zahiri and porting it into Arnold.

[00:10:17] Speaker 00:
Right, but that doesn't import anything else from Zahiri necessarily.

[00:10:22] Speaker 00:
If you take just the angled hole, for example, if you take Arnold and you say, well, you know, if we use an angled hole in Arnold instead of the round single-axis hole that's in Arnold,

[00:10:37] Speaker 00:
We can get a higher angle of the screw going into the bone without having to bring the arc of the leg as far around as we need.

[00:10:51] Speaker 00:
Why isn't that the kind of consideration that would make the two combining the two perfectly reasonable?

[00:10:59] Speaker 02:
Because the angled hole of the Zahiri is a very specific kind of angled hole that only allows for a fixed angle and Arnold cares

[00:11:07] Speaker 02:
very much about the surgeon being able to have flexibility in terms of picking an angle.

[00:11:15] Speaker 02:
That's why they have this leg.

[00:11:16] Speaker 00:
But you'd still have flexibility because you could bend the leg in Arnold.

[00:11:21] Speaker 00:
You'd just have a greater angle to work with if you had an angled hole instead of the round, direct hole that's in Arnold, right?

[00:11:30] Speaker 02:
There's no evidence that supports that because there's only evidence that says the other way.

[00:11:35] Speaker 02:
That if you're to have an angled hole,

[00:11:37] Speaker 02:
of Zahiri, your leg is not going to be so thin anymore.

[00:11:42] Speaker 02:
Because it's one thing to stick a little perpendicular hole in on a thin part of a leg.

[00:11:46] Speaker 02:
But if you're going to have an angled hole, particularly the Zahiri angled hole, then you're going to have to be a lot thicker.

[00:11:52] Speaker 02:
You can't just stick an angled hole in a thin plate.

[00:11:55] Speaker 02:
And so if that is true, then the leg, and there's evidence from Stryker explaining that your leg is no longer going to be able to move.

[00:12:05] Speaker 02:
if you have a thickened leg that allows for an angled hole.

[00:12:12] Speaker 02:
And so that's basically why there's an explanation by Stryker that there's no reasonable expectation of success here.

[00:12:20] Speaker 04:
OK, you're into your rebuttal time.

[00:12:22] Speaker 04:
OK, thank you so much.

[00:12:34] Speaker 01:
Good morning on our skin.

[00:12:36] Speaker 01:
I want to jump right in on the motivation to combine Arno and Zahiri.

[00:12:41] Speaker 01:
Putting aside the broad statement that Ms.

[00:12:46] Speaker 01:
Fung referred to earlier, there are other motivations not only presented in our petition, but relied on by the board.

[00:12:53] Speaker 01:
Not only is Zahiri a bone plate, not a guide plate, as the board found, it, like Arno, uses a screw that crosses the bone discontinuity and compresses across the joint a fracture

[00:13:04] Speaker 01:
to absorb stress into the combination of the head and the hole.

[00:13:08] Speaker 01:
At appendix 831 paragraph 216, our expert indicated that one of the stated goals of our NO relates to the locking screw in the head.

[00:13:21] Speaker 01:
And Zahiri teaches that the strength and screw hole of Zahiri will allow sufficient dissipation of force so as not to damage the bone parts.

[00:13:32] Speaker 01:
And the board cited that at appendix 21, relying on Osteomed's petition at 192 to 193.

[00:13:40] Speaker 01:
As a result below, Osteomed argued with the support of its expert, Mr. Sherman, that a posita would have looked to Zahiri to improve the integrity of the hole in Arno.

[00:13:51] Speaker 01:
And that's at APPX 833 paragraph 221.

[00:13:57] Speaker 01:
They argue that there is no

[00:14:01] Speaker 01:
ability to just take Zahiri and move it across the humerus or move it to the foot bone but again this ignores and overlooks the combination at issue here which is enhancing our nose plate with a reinforced screw hole of Zahiri and the petition details why that would be done.

[00:14:20] Speaker 01:
Council also indicated that we never argued below in the petition that this would be easily done and in fact we do at APPX

[00:14:29] Speaker 01:
3198 this is a draft or this is the petition submitted in the 488 patent proceeding a Poseida would understand that the opening is a third hole angle relative to the longitudinal axis of the plate talking about to hear e Such a location would be easily implemented on the plate of our note to increase the compressive forces And that's again citing to the expert testimony of mr. Sherman

[00:14:57] Speaker 01:
There's clearly substantial evidence here beyond the statement that Stryker takes issue with from Mr. Sherman, including from the references themselves that decide and explain why you would want to enhance the integrity of the cross-joint screw hole of Arno.

[00:15:20] Speaker 01:
In terms of flexibility, I think, Judge Bryson, your point was exactly correct, that are no reasonable to the ability to have flexibility of that leg portion.

[00:15:30] Speaker 01:
And again, that's something that we presented below.

[00:15:33] Speaker 01:
And unless, Your Honors, have any other questions.

[00:15:35] Speaker 03:
No reasonable expectation of success.

[00:15:40] Speaker 01:
I think that goes to that it would be easily implemented in the combination.

[00:15:46] Speaker 03:
Do you ever at least use the words reasonable expectation of success?

[00:15:50] Speaker 01:
I believe we do.

[00:15:51] Speaker 01:
I should have had that.

[00:15:53] Speaker 00:
The board does in one sentence.

[00:15:55] Speaker 01:
Correct.

[00:15:58] Speaker 03:
But the contention is you all didn't raise it in your petition and the board's making up evidence.

[00:16:15] Speaker 01:
I believe that we presented in our petition that there was a reasonable expectation of success, but I don't have an insight for you at this moment.

[00:16:27] Speaker 01:
Thank you.

[00:16:28] Speaker 00:
Let me just probe, if I could, briefly on unreasonable expectation of success.

[00:16:39] Speaker 00:
It seems to me that your argument that

[00:16:44] Speaker 00:
just made and made in your brief is effectively saying that once you've established a motivation to combine, particularly if it is based on similarity of the reference with the patent, that you're done on reasonable expectation of success.

[00:17:05] Speaker 00:
But we've treated that as a separate requirement.

[00:17:08] Speaker 00:
Is there some element of reasonable expectation of success that you can identify that's separate from and in addition to the motivation to combine?

[00:17:25] Speaker 01:
I think just the statement and the petition that it would be easily implemented in the plate, including because of the interchangeability aspect that our expert testified about.

[00:17:42] Speaker 01:
Thank you.

[00:17:42] Speaker 02:
I want to go back to motivation to combine again, because I think there is an issue with respect to the claim limitation between that is in all of the claims of the 751 patent.

[00:18:06] Speaker 02:
So if we're talking about motivation to combine, and I think you were talking about

[00:18:11] Speaker 02:
about it more broadly, but sort of focusing on the angled hole.

[00:18:16] Speaker 02:
With respect to the between limitation, the motivation to combine Arnold and Sahiri, the osteomed and the board both relied on figure eight of the Sahiri patent to show that there's a third hole that's between what they call a first and a second hole, even though those first and second holes aren't on either side of the joint.

[00:18:40] Speaker 02:
required to be under the claims.

[00:18:42] Speaker 02:
But the point there is, Judge Bryson, you said, when we were talking about the angry hole, that it's understood that the hole is going to be in the hole at the end of the leg of Arnold.

[00:18:55] Speaker 02:
It's that hole 25, right?

[00:18:57] Speaker 02:
But if we're in Arnold plus Zahiri combining, and we're looking at figure 8,

[00:19:04] Speaker 02:
Figure eight is showing a hole that's literally between your eight of the, of the Zahiri.

[00:19:09] Speaker 02:
Yes.

[00:19:11] Speaker 02:
So figure eight, nobody really ever explained what's happening there.

[00:19:15] Speaker 02:
They just said, look at figure eight.

[00:19:16] Speaker 02:
There's a third hole that's between a first and a second hole.

[00:19:20] Speaker 02:
And then I was like, now we're done.

[00:19:21] Speaker 02:
But the whole point is if we're in the land of Arnold and Zahiri, that means that we care about using the hole 238 of Zahiri and putting

[00:19:33] Speaker 02:
the putting the Arnold hole in the same location.

[00:19:37] Speaker 02:
Then all of a sudden, it doesn't make any sense that we just said that you're putting the angled hole at the end of the leg in Arnold because now you need to put the hole in the middle of the Arnold plate if you're really caring about figure eight of Zahiri.

[00:19:53] Speaker 02:
So it's just, it's inconsistent and it's never explained because it's just given short shrift.

[00:19:59] Speaker 02:
Osteomed, they basically just said, look here, it's not good enough.

[00:20:03] Speaker 02:
to go into the prior art and find different limitations independently.

[00:20:07] Speaker 02:
You have to show how it's going to be combined.

[00:20:10] Speaker 02:
And the combination is inconsistent between between and the angled hole.

[00:20:16] Speaker 02:
And so I wanted to point out that inconsistency, because I think it matters when we're focusing on motivation to combine.

[00:20:25] Speaker 04:
Thank you.

[00:20:26] Speaker 04:
Thank you.

[00:20:26] Speaker 04:
Thank you, both counsel.

[00:20:27] Speaker 04:
The case is submitted.