[00:00:00] Speaker 00:
And that leads to our final case this morning, number 2411-12, U.S.

[00:00:05] Speaker 00:
Wells Services v. Stewart.

[00:00:08] Speaker 00:
Okay, Mr. Dad.

[00:00:11] Speaker 04:
Good morning, Judge Dyke.

[00:00:12] Speaker 04:
Good morning, Your Honors.

[00:00:13] Speaker 04:
May it please the Court?

[00:00:15] Speaker 04:
The patent intervention here is directed to a hydraulic fracturing system or module.

[00:00:22] Speaker 04:
There are a few issues.

[00:00:23] Speaker 04:
If I may, I'd like to start with

[00:00:25] Speaker 04:
the board's error with respect to amended claims with the limitation of perpendicular.

[00:00:33] Speaker 04:
With respect to that, I think our main argument essentially is that the board committed legal error on two points.

[00:00:43] Speaker 04:
One was the board's position that the photographs that were in the provisional application were incorporated by reference.

[00:00:52] Speaker 02:
Can I ask you about that?

[00:00:53] Speaker 02:
Yes.

[00:00:54] Speaker 02:
of your vocabulary where it says, and I'm quoting you, the board's erroneously asserted for the first time in the final written decision that, quote, considering the photographs in the 306 application would violate 35 U.S.

[00:01:10] Speaker 02:
Code 316.3 by introducing new matter, end quote, and then that's the end of your quote.

[00:01:17] Speaker 02:
So I read that and I think that the board said that, because you said the board said this, and then you have a quote,

[00:01:24] Speaker 02:
But I go and look at that page of the appendix, and that is not from that page.

[00:01:30] Speaker 02:
That wasn't anywhere in the board's final written decision at all.

[00:01:35] Speaker 02:
The board never said that, and the board didn't do that, right?

[00:01:41] Speaker 04:
So I'm sorry.

[00:01:41] Speaker 04:
Are you in the first paragraph on page 10?

[00:01:44] Speaker 02:
I am.

[00:01:45] Speaker 04:
Considering the photographs in the 306 application.

[00:01:52] Speaker 04:
May I get the joint appendix?

[00:01:54] Speaker 04:
Yes.

[00:02:24] Speaker 04:
I see that we cite page appendix 14.

[00:02:27] Speaker 04:
That might have been a miscitation to the record.

[00:02:35] Speaker 04:
Standing here right now, no, Judge Hall.

[00:02:38] Speaker 04:
And so if that was an error, my understanding was that the board's position was

[00:02:43] Speaker 04:
that the provisional application wasn't incorporated by reference into the patent at issue.

[00:02:50] Speaker 04:
And that's the point that we were trying to make.

[00:02:52] Speaker 04:
And if that was incorrectly ordered, I apologize.

[00:02:55] Speaker 00:
Maybe it was by AI, no?

[00:02:59] Speaker 04:
No, Judge Dyke.

[00:03:01] Speaker 04:
No, it was not.

[00:03:01] Speaker 04:
I could represent that for certain.

[00:03:04] Speaker 02:
Well, let me ask you then about another one that I found in the opening brief at page 43.

[00:03:16] Speaker 02:
The specification expressly discusses two of the general arrangements, parallel and oblique, and goes on to recognize that, quote, changing the orientations of the axes of the helical coils can have various effects, and the orientation chosen will be for a particular design goal for the system.

[00:03:42] Speaker 02:
So I read that sentence, and I think that that's what the specification

[00:03:49] Speaker 02:
is nowhere in the specification of the patents for the application or any other patent or application in the record.

[00:03:57] Speaker 04:
The quoted text, Your Honor?

[00:03:59] Speaker 04:
Yes.

[00:04:00] Speaker 04:
I believe that is in the, or it's citing Appendix 4325, which is part of the provisional application at issue.

[00:04:11] Speaker 02:
All right.

[00:04:12] Speaker 02:
Why don't you speak to that?

[00:04:17] Speaker 04:
So for that part of the brief, we're referring to paragraph 27 on 4325.

[00:04:34] Speaker 04:
And paragraph 27 is talking about figure 7, where it says it should be pointed out that

[00:04:43] Speaker 04:
Examples of the cable coil assembly 104 exists wherein an axis of the helix of the coil 106 is oriented at angles that vary from an axis of the associated piping supported by... Is that quote in the application?

[00:05:01] Speaker 04:
I believe it is, Your Honor.

[00:05:02] Speaker 04:
And if it is not, then I apologize, Judge Hall.

[00:05:06] Speaker 04:
But again, the point that we're trying to make here is that, and going back to my original point,

[00:05:13] Speaker 04:
is that the photographs were incorporated by reference.

[00:05:19] Speaker 04:
And that was the main error that we were pointing out.

[00:05:22] Speaker 04:
Beyond the photographs, with respect to the perpendicular limitation, we're relying on the drawings.

[00:05:28] Speaker 04:
And there's no dispute in terms of the drawings and what they depict.

[00:05:32] Speaker 04:
And in particular, and this is at 4325, so when we're looking at 4325, Figure 7 is referenced in that paragraph.

[00:05:44] Speaker 04:
And at 43, 47 is figure 7.

[00:05:50] Speaker 04:
And that shows the coils, all three coils, parallel.

[00:05:59] Speaker 04:
And the point of that particular paragraph is it is necessarily describing that the orientation in the other figure shows that the coils are perpendicular.

[00:06:14] Speaker 04:
And that's really the ultimate point that we're making.

[00:06:18] Speaker 04:
And so with respect to these amended claims, I don't think there should be any question that there is sufficient written description support for the perpendicular limitation.

[00:06:31] Speaker 04:
And in our briefs, we do explicate the case law that we rely on.

[00:06:37] Speaker 04:
The board and Halliburton rely only on one case, the Soros Vagabond case.

[00:06:44] Speaker 04:
And we don't think that that case really diminishes our position.

[00:06:49] Speaker 04:
Because when you look at the case law with respect to reliance on drawings, in terms of supporting.

[00:06:56] Speaker 01:
How would we know that a person of ordinary skill would think that those angles are specifically perpendicular rather than 95 degrees or some other degree?

[00:07:06] Speaker 04:
Well, so two reasons, Judge Cunningham.

[00:07:10] Speaker 04:
One, you just look at them and they show that they're perpendicular.

[00:07:14] Speaker 04:
I mean, the board relied on speculation in terms of saying, well, it could have been something else, it could have been something else.

[00:07:20] Speaker 04:
The second is that our position is that the board used an overly strict written description standard.

[00:07:26] Speaker 04:
It has to reasonably convey.

[00:07:28] Speaker 04:
It doesn't have to do it with absolute certainty.

[00:07:31] Speaker 04:
And then the third, and I think this is the most important point in response to your question, Judge Cunningham, is that when you look at paragraph 27 at 4325, again, pointing to that sentence, it should be pointed out that examples of the cable coil assembly 104 exists wherein an axis of the helix of the coil is oriented at angles that vary from an axis of the associated piping.

[00:07:57] Speaker 04:
So essentially,

[00:07:58] Speaker 04:
What it's saying is that Figure 7 is an alternative to the typical arrangement shown in the application, where the axis does not vary from the piping.

[00:08:14] Speaker 01:
And if the axis of- How does showing that there's variation, per se, mean that it's perpendicular?

[00:08:21] Speaker 01:
I thought that you're pointing me to Paragraph 27 on Appendix Page 4325.

[00:08:26] Speaker 01:
Is that right?

[00:08:27] Speaker 04:
Correct, Your Honor.

[00:08:28] Speaker 01:
And I hear the argument that you're making.

[00:08:30] Speaker 01:
I'm not saying that I don't understand or hear the argument that you're making.

[00:08:34] Speaker 01:
But I'm not sure if just from this paragraph, you get this per se perpendicular.

[00:08:38] Speaker 01:
So maybe show me what you think is your best proof that there should be written description support with respect to this perpendicularity argument.

[00:08:46] Speaker 04:
Yes, Your Honor.

[00:08:46] Speaker 04:
And I think you have to look at it in combination with Figure 6.

[00:08:52] Speaker 04:
And Figure 6 is at 4346.

[00:08:59] Speaker 04:
And so figure 6 is one of the drawings that provides support, in our view, of the perpendicular configuration.

[00:09:07] Speaker 04:
And when you take the description in paragraph 27 and you combine it with the comparison of figure 7 and figure 6, what paragraph 27 is essentially stating is that the coil

[00:09:29] Speaker 04:
And this is, when you look at figure six, it's the third coil from the left.

[00:09:35] Speaker 04:
That coil is essentially oriented at an axis that is the same as the piping it supports.

[00:09:49] Speaker 04:
And then when you look at figure seven, the three coils are clearly perpendicular to the piping.

[00:09:58] Speaker 04:
that they support.

[00:10:01] Speaker 04:
So by implication, it means that that middle coil in figure 6 must necessarily be aligned with that piping it's supporting, and that the other two are then perpendicular.

[00:10:16] Speaker 04:
And so again, going back to

[00:10:19] Speaker 04:
our main position here, it only recently has to convey to one of skill in the yard that these appear to be perpendicular.

[00:10:30] Speaker 04:
It doesn't have to be absolute certainty.

[00:10:33] Speaker 04:
And I will note that Halliburne's expert didn't provide any testimony on this, didn't dispute this.

[00:10:41] Speaker 04:
And it's really simply the board's speculation that it could be something else.

[00:10:48] Speaker 04:
So unless there are any further questions on that, I could turn to another issue in the case.

[00:10:56] Speaker 04:
So the second written description issue is with respect to claims 7 and 15, the original claims.

[00:11:04] Speaker 04:
And this is the question of whether there is written description support for a controller.

[00:11:11] Speaker 04:
And here we have in the provisional priority application

[00:11:16] Speaker 04:
there is data showing vibrational analysis.

[00:11:20] Speaker 04:
And our expert explained that there was no reason to have that or do that vibrational analysis if you would not also have a controller that would use that data somehow with respect to the operation.

[00:11:36] Speaker 04:
That testimony, although it is short and it's concise, that testimony... Compels the finding your way?

[00:11:43] Speaker 04:
Pardon, Your Honor?

[00:11:44] Speaker 00:
Compels the finding your way?

[00:11:47] Speaker 04:
It compels a finding when you consider that it has to reasonably convey.

[00:11:53] Speaker 04:
Again, it doesn't have to be absolutely certain.

[00:11:55] Speaker 04:
It's whether there's a reasonable position that one of ordinary skill and the art would have viewed the inventors have then been in possession of the invention.

[00:12:06] Speaker 01:
I could maybe see how you're saying the other page we looked at could reasonably convey with respect to perpendicularity.

[00:12:14] Speaker 01:
But can you point me to some specific pages on the record to support up what you're saying should be reasonably conveyed here on this written description argument?

[00:12:23] Speaker 04:
Your Honor, I can give you what's in the record.

[00:12:25] Speaker 04:
And I will acknowledge it's limited.

[00:12:28] Speaker 04:
And it's basically three things.

[00:12:30] Speaker 04:
It's the graph showing the data.

[00:12:35] Speaker 04:
It's our expert's testimony.

[00:12:38] Speaker 04:
And there's one sentence from Dr. Durham on the other side.

[00:12:42] Speaker 04:
And that's it.

[00:12:44] Speaker 04:
So Your Honor, it's a confined argument.

[00:12:48] Speaker 04:
And I can understand how this particular argument with respect to written description may not be as strong as the perpendicular argument for the amended claims.

[00:12:58] Speaker 04:
But I think our main point here is that you have an expert at least providing some explanation of why a person of ordinary skill and the art would be considered to have possessed that controller, that limitation.

[00:13:13] Speaker 04:
And on the other side, you have no explanation from their expert.

[00:13:19] Speaker 04:
And then you have the board simply dismissing or discrediting our expert.

[00:13:24] Speaker 04:
And that's our main position on that, Your Honor.

[00:13:31] Speaker 01:
So it sounds like your main position is pretty dependent on what you consider to be almost silence from the other side.

[00:13:39] Speaker 01:
Is that right?

[00:13:40] Speaker 01:
Is that a key portion of your main position?

[00:13:43] Speaker 04:
It's basically silence, yes, Your Honor, but it's undisputed expert testimony.

[00:13:49] Speaker 04:
And it's undisputed expert testimony that provides a cogent explanation of why nobody in the field would simply

[00:13:58] Speaker 04:
collect the data without also using it through a controller.

[00:14:02] Speaker 04:
And again, Your Honor, to be completely candid, it's a slim record, but that's our position, and we see it at the Board providing no explanation other than speculation for refuting or discrediting our expert's testimony on this.

[00:14:19] Speaker 04:
And I see that I'm in rebuttal, and unless there are further questions, I'll reserve.

[00:14:23] Speaker 02:
I have one final question.

[00:14:28] Speaker 02:
You make the argument that a petitioner who claims not to understand the scope of the challenge claim should not be permitted to proceed.

[00:14:37] Speaker 02:
What doctrine is that?

[00:14:42] Speaker 04:
Your Honor, I think that's added.

[00:14:44] Speaker 04:
That's our policy view on that.

[00:14:46] Speaker 04:
We understand that we're not challenging and we cannot challenge an institution.

[00:14:52] Speaker 04:
We think that there are some fundamental policy reasons why a petitioner,

[00:14:57] Speaker 04:
It says one thing is the institution or petitioning shouldn't be able to take a different tack, but we recognize that that issue is not on appeal.

[00:15:26] Speaker 03:
Good morning, and may it please the court.

[00:15:30] Speaker 03:
Mike Tyler on behalf of the United States Patent and Trademark Office.

[00:15:33] Speaker 03:
Substantial evidence supports the board's findings as to original claims 1 through 15 being obvious, as well as substitute claims 16 through 22 being obvious.

[00:15:44] Speaker 03:
Also, proposed substitute claims 23 through 30 failed to find written description support for the added limitation of perpendicularly arranging the helical coils.

[00:15:56] Speaker 00:
Yeah, why don't you focus on that?

[00:15:58] Speaker 03:
Let me start there.

[00:15:58] Speaker 03:
And actually, I'd like to start first with, I know we were looking at the application paragraph number, but I think it obeyed the court at appendix 147 of the 824 patent.

[00:16:10] Speaker 03:
That discussion involving figure 7 is located at column 8, starting at lines 21 through 29.

[00:16:18] Speaker 03:
And to my knowledge, this is the only place in the patent that discusses any angles or orientations of.

[00:16:25] Speaker 00:
Give me that page again.

[00:16:27] Speaker 03:
Yes, sir.

[00:16:28] Speaker 03:
Yes, your honor.

[00:16:29] Speaker 03:
It's appendix 147.

[00:16:29] Speaker 00:
147.

[00:16:41] Speaker 03:
Column 8, starting at line 21, the paragraph that begins figure 7 shows.

[00:16:47] Speaker 03:
And then, again, the orientation being discussed here is only discussing the orientation of the helical coils to the support of the pipe that they're attached to.

[00:16:59] Speaker 03:
What the proposed amended claim is doing is talking about the specific orientation between the two helical coil sets that are separated.

[00:17:11] Speaker 03:
So as the board.

[00:17:12] Speaker 03:
Because they're finding that support in the provisional, right?

[00:17:17] Speaker 03:
So they claim that both figures four and six in this application as well as the provisional finds that support.

[00:17:25] Speaker 03:
The board, although the board said that the provisional was not relevant, and I'll defend that it's not relevant here, but they went on to analyze it, and for the same reasons that they felt that figures four and six failed to disclose this.

[00:17:40] Speaker 00:
The photographs are incorporated by reference in the provisions, right?

[00:17:45] Speaker 03:
Your Honor, the photographs are contained in the provisional.

[00:17:49] Speaker 03:
The board made the statement, maybe a little tersely, but the reasoning is the application that was filed in response to that provisional did not maintain any disclosure about the orientation of the coils.

[00:18:04] Speaker 03:
And so when the board says that even if it had been carried forward to this application, we don't find it persuasive, there's an argument not of the record that it was not carried forward to this patent.

[00:18:16] Speaker 03:
And specifically, because,

[00:18:19] Speaker 03:
This is being used to find written description support.

[00:18:23] Speaker 03:
It is deemed essential material, and incorporation by reference to essential material must be done only to a patent or a published patent application, not to a provisional or not embedded down the road in a patent that then incorporates another patent.

[00:18:42] Speaker 03:
The only other place in the family that discusses anything relating to orientation, again, has to do with the orientation of the helical coil to the pipe that it's being attached to.

[00:18:53] Speaker 01:
Was the argument that the photos weren't carried forward raised in the briefing before the PTAS?

[00:18:59] Speaker 03:
No, Your Honor.

[00:18:59] Speaker 03:
I do not believe Halliburton challenged the inclusion by reference point that the patent owner had made.

[00:19:07] Speaker 03:
The board did say, and I can find the appendix site, but the board did say they did not think it was carried forward even if it had been.

[00:19:15] Speaker 03:
But to my knowledge Halliburton did not make that argument.

[00:19:19] Speaker 01:
So what is your response to when opposing counsel pointed us to those particular pages and made the argument essentially that if you look at these figures, admittedly they made argument in combination with I think paragraph 27, that there is sufficient written description support.

[00:19:37] Speaker 03:
I think there are two problems with that.

[00:19:39] Speaker 03:
The one the board went through, which is, as my colleague was up here at the podium doing, you have to make two assumptions based on looking at either figure four or figure six.

[00:19:50] Speaker 03:
The first assumption is that the two pipes are aligned parallel.

[00:19:55] Speaker 03:
There's nothing in the specification, nothing in the drawings that expressly or inherently requires they be parallel.

[00:20:03] Speaker 03:
You also have to make the assumption that the helical coils are set perpendicular to the pipe in order to, I guess through mathematical transverse properties, get to that the helical coils are then themselves also perpendicular.

[00:20:19] Speaker 03:
I think the second and stronger argument is there was zero expert testimony

[00:20:25] Speaker 03:
or from one of skill in the art as to why anyone in this field would make such assumptions or have any sort of certainty or clarity.

[00:20:34] Speaker 03:
And that's something else that the board relied on is that it was only these figures and supporting attorney argument, but no expert testimony as to why this would be the case or why this would inform one of skill in the art that this is inherently or expressly disclosed.

[00:20:56] Speaker 01:
I got the impression that from the briefing, they were contending that reliance on these figures, as opposed to explicit statements, that was part of what they thought was the problem.

[00:21:12] Speaker 03:
To the extent that Halliburton's argument can be read as trying to somehow say that figures cannot provide written description support, we would not agree with that.

[00:21:22] Speaker 03:
Of course, figures can.

[00:21:23] Speaker 03:
But there are lines of cases, and we do think that this is closer to power oasis, is we're not talking about relative, that there are coils separated from each other, or that ones above or below another.

[00:21:36] Speaker 03:
This is a specific and a particular angle that they're trying to claim.

[00:21:40] Speaker 03:
It's perpendicular.

[00:21:42] Speaker 03:
And I think Judge Cunningham, you raised

[00:21:44] Speaker 03:
A good point.

[00:21:44] Speaker 03:
We don't have any expert testimony to tell us if in the field, seeing this or knowing that there's a plus or five degree variance is OK.

[00:21:52] Speaker 03:
The board had nothing to go on.

[00:21:54] Speaker 03:
And similarly, that means that it is not expressly disclosed for sure.

[00:21:59] Speaker 03:
And there's no evidence that the board found that it would be inherently disclosed to one of skill in the art.

[00:22:05] Speaker 00:
Well, I understand that argument with respect to the figures.

[00:22:09] Speaker 00:
Does the same thing apply to the photograph?

[00:22:11] Speaker 03:
The board applied the exact same reasoning on the side view and also the lack of expert testimony as to why the photographs also do not support the claim.

[00:22:24] Speaker 00:
Are the photographs ambiguous in the same way the figures are?

[00:22:28] Speaker 03:
To be quite candid, Your Honor, I think if anything, the photographs are slightly less ambiguous because on some of them, they appear to be.

[00:22:37] Speaker 03:
And again, there is no expert testimony to corroborate any of this.

[00:22:40] Speaker 03:
To the naked eye, they appear to be sitting on a grid type of concrete fixture, which, again, there was expert testimony saying this is why we do it.

[00:22:51] Speaker 03:
And in the field, it's just known that you always want to have these at right angles.

[00:22:55] Speaker 03:
But I would like to draw the court's attention to appendix 428, which is a patent that is part of the family, but it goes a couple of grandparents up before it

[00:23:10] Speaker 03:
was a continuation in part.

[00:23:12] Speaker 03:
And this patent, again, I apologize, Your Honors, but the patent number is 10-119-381.

[00:23:20] Speaker 03:
And although this claim is not of the record, claim three of that patent is the only one in which of this family that US Well Services had claimed any sort of relationship between objects.

[00:23:36] Speaker 03:
And that claim reads that the helical coils are disposed oblique with.

[00:23:40] Speaker 03:
the axis of the pipe they're sitting on.

[00:23:43] Speaker 03:
So the only time in their family that they had claimed previously some particular orientation that was actually not perpendicular was what they were claiming.

[00:23:53] Speaker 01:
So we don't have, though, in the joint appendix the claim that you just read us, right?

[00:23:57] Speaker 03:
That's correct, Your Honor.

[00:23:59] Speaker 01:
And then can we also look at the figures while we're talking through that, I think?

[00:24:03] Speaker 01:
Or not the figures.

[00:24:03] Speaker 01:
I'm sorry, the photos.

[00:24:04] Speaker 03:
Yes, Your Honor.

[00:24:05] Speaker 03:
The photos will be starting at appendix 464.

[00:24:10] Speaker 03:
And you'll see on 464, you can see the grid feature that I was describing before.

[00:24:18] Speaker 03:
And 471, I believe, is one which shows both the coil on the discharge and the suction lines.

[00:24:27] Speaker 03:
And again, the photo shows what it shows.

[00:24:31] Speaker 03:
And without any expert testimony, the board was not sure how this would inform one of Skill in the Art that you are in possession

[00:24:39] Speaker 03:
the precise perpendicular orientation of these two coils.

[00:24:46] Speaker 01:
But you did already admit that the photos are not ambiguous.

[00:24:52] Speaker 03:
Your Honor, I believe I said they are less ambiguous.

[00:24:56] Speaker 03:
I wouldn't say that they are not ambiguous because, again, these photos in the record are black and white, kind of grainy.

[00:25:02] Speaker 03:
There's no angle markers.

[00:25:05] Speaker 01:
OK, so let me give you a scale.

[00:25:07] Speaker ?:
Yes.

[00:25:08] Speaker 01:
It's a 10?

[00:25:10] Speaker 01:
And not ambiguous as a zero?

[00:25:12] Speaker 01:
Where are you in there?

[00:25:14] Speaker 03:
Me personally?

[00:25:15] Speaker 01:
What do you think of these photos?

[00:25:17] Speaker 01:
Where do they fit?

[00:25:18] Speaker 01:
Are they like a one?

[00:25:21] Speaker 03:
I certainly would not want to look at this photo and say that there is no way that those two coils would be perpendicular.

[00:25:29] Speaker 03:
But we're not here to show that.

[00:25:31] Speaker 03:
What we need to show is that someone of skill in the art looking at this photo

[00:25:36] Speaker 03:
knows either expressly or inherently that they are perpendicular.

[00:25:41] Speaker 03:
But I have confidence that they are perpendicular within 10 degrees.

[00:25:47] Speaker 03:
But again, without any teaching in the specification, we don't know what level of tolerance would be acceptable.

[00:25:53] Speaker 03:
So for all I know, this actual photo came from a thing in the field that had an 88 degree offset on these two pieces.

[00:26:00] Speaker 03:
There's just no evidence in the record on that point.

[00:26:04] Speaker 03:
Is there any more on perpendicular?

[00:26:07] Speaker 03:
I'd like to.

[00:26:09] Speaker 03:
Turning back to the, I guess the only other argument that was raised by my colleague was with respects to claims seven and 15.

[00:26:19] Speaker 03:
And here again, the board found that in this case, the provisional application did not support the controller limitation.

[00:26:29] Speaker 03:
It's not that the board didn't credit their expert at all.

[00:26:32] Speaker 03:
In fact, the board said this graph evidences that transducers were used.

[00:26:38] Speaker 03:
And obviously, something had to read that electrical signal.

[00:26:42] Speaker 03:
But it's quite a leap to go from that to what the claim requires.

[00:26:46] Speaker 03:
And specifically, claim seven requires that a controller uses vibration data to monitor and or adjust control commands of the system.

[00:26:59] Speaker 03:
Nothing in that graph teaches anyone about control commands or what the control commands of this invention would be.

[00:27:06] Speaker 03:
And so I think that's where the board, there was a gap for the board.

[00:27:10] Speaker 03:
I think if the claimants had a transducer to read pressure and they saw the graph, that would probably be supported.

[00:27:17] Speaker 03:
Because one of skill and the art would know you have to have some way of reading and processing this information.

[00:27:26] Speaker 03:
Unless there are any other questions, I don't believe any other.

[00:27:29] Speaker 03:
So with that, we would ask that you affirm the board's decision.

[00:27:39] Speaker ?:
Thank you.

[00:27:39] Speaker ?:
Mr. Dabb, you've got a couple minutes.

[00:27:46] Speaker 04:
Thank you.

[00:27:46] Speaker 04:
Just a few points, Your Honors.

[00:27:49] Speaker 04:
I agree with my colleague that the photographs provide an even better depiction of the perpendicular

[00:27:55] Speaker 04:
nature of the coils.

[00:27:56] Speaker 00:
That's not quite what he said.

[00:27:59] Speaker 04:
I'm giving Mr. Tyler a little credit there.

[00:28:02] Speaker 00:
Maybe it would be no more than 10 degrees off, but 10 degrees off would be fatal to you, right?

[00:28:10] Speaker 04:
So that's a really interesting point, Judge Dyke, because I think that gets into just the question of what level of specificity do you have to have for perpendicular?

[00:28:20] Speaker 04:
There's never an argument that it has to be 90.000 degrees.

[00:28:25] Speaker 04:
It's a question of what's reasonable in this context.

[00:28:29] Speaker 04:
And so then going back to this emphasis about the lack of expert testimony on this, you look at the figures and you look at the photographs.

[00:28:38] Speaker 04:
And if you had to bet, just like my colleague said, he wouldn't bet that they're not perpendicular.

[00:28:43] Speaker 00:
The perpendicularity has nothing to do with the function, right?

[00:28:48] Speaker 00:
What is the suggestion as to why it matters whether they're perpendicular or not?

[00:28:54] Speaker 04:
why it matters?

[00:28:55] Speaker 00:
Yeah, what function does perpendicularity?

[00:28:58] Speaker 04:
Well, that's a claim limitation.

[00:29:00] Speaker 00:
I understand that, but I mean, there are claim limitations which don't mean much.

[00:29:05] Speaker 00:
Maybe this is one of those.

[00:29:07] Speaker 04:
No, I disagree on that, because in the specification, it does talk about oblique, and it talks about how you could change those angles with respect to the different coils, and that's going to affect the vibrational transition.

[00:29:19] Speaker 02:
Well, that's what I want to ask you about.

[00:29:23] Speaker 02:
Going to what Judge Dyke said, your argument seems to be, well, we disclose that you could change the angles, and then you argue and you breathe.

[00:29:32] Speaker 02:
Well, and you would understand that things can only be either parallel or perpendicular or something in between, so we must have considered perpendicular.

[00:29:40] Speaker 02:
And then your argument for that is so that if we give you that, then your argument is going to be, and the reason why the invention isn't obvious is because it's perpendicular.

[00:29:49] Speaker 02:
That's what we discovered.

[00:29:51] Speaker 02:
It seems very strange.

[00:29:51] Speaker 02:
It's a curious argument to make.

[00:29:53] Speaker 04:
Well, Judge Hall, what I'm asking is an opportunity to go back to the board to explain why this particular configuration is non-obvious.

[00:30:01] Speaker 04:
That's what we didn't have here.

[00:30:03] Speaker 04:
And in the briefing, Halliburton agreed that if there's written description support for this limitation based on the photographs and based on the drawings, then it should be remanded.

[00:30:15] Speaker 04:
And that's what we're asking for, Your Honor.

[00:30:16] Speaker 04:
And I understand your position in terms of there might be some question about the obviousness, but the issue before the court was whether simply

[00:30:23] Speaker 04:
whether it's written description support, whether it would reasonably convey, when you look at those figures, when they reasonably convey whether they look to be perpendicular or not.

[00:30:32] Speaker 04:
And we submit that they do.

[00:30:34] Speaker 00:
OK.

[00:30:34] Speaker 00:
Thank you.

[00:30:35] Speaker 00:
Thank both counsels.

[00:30:36] Speaker 00:
The case is submitted.

[00:30:37] Speaker 00:
That concludes our session over this morning.

[00:30:38] Speaker 04:
Thank you, Your Honor.