[00:00:00] Speaker 04:
and we will begin with case number 242167, Lifespine against Globus Medical.

[00:00:09] Speaker 04:
Mr. Glass, whenever you're ready.

[00:00:12] Speaker 02:
Good morning, Your Honors. May it please the Court, James Glass, representing Appellant Lifespine Incorporated.

[00:00:18] Speaker 02:
Your Honors, there's one issue on appeal today, specifically the Board's error in construing the claimed ramped portions that are complementary with each other to be limited to those that complete one another.

[00:00:30] Speaker 02:
I'll jump right to the issues. The board's construction was an error here, primarily because it excludes the very embodiment that Claim 10 was intended to cover. The word complementary was added during prosecution. This is at Appendix 1342 through 44, in response to an objection over the prior art almost in Biedermann.

[00:00:49] Speaker 03:
Before you get to that, the claim language is actually complementary with. Would you agree with that? It's complementary with each other, correct? Or with one another? With one another, correct.

[00:01:00] Speaker 03:
Complementary with implies, I would think, some sort of fitting together and not just looking like each other, favoring, I would say, the construction that the board had.

[00:01:13] Speaker 02:
We don't disagree that it includes that. We certainly don't disagree that it includes angles that, to the extent we understand what complete means, that it includes. They mate with one another, or like a puzzle piece. Our construction does not exclude that. But our point is that based on the specification, based on the prosecution history, it must also include the figure 40 embodiments.

[00:01:37] Speaker 02:
Does that answer your question, Your Honor?

[00:01:39] Speaker 03:
It does.

[00:01:41] Speaker 03:
Do you think it's meaningful that the phrase complementary with does not appear in the specification? Only complementary alone does.

[00:01:51] Speaker 02:
I think it's...

[00:01:53] Speaker 02:
It's important only in the sense that, again, what the applicants intended to cover, I think, was very clearly stated in the prosecution history. The fact that the word complementary is used in connection with Figure 17, I don't really think informs what it means in the claim itself. It's very vague how it's used in that context. It could be consistent with the notion that they fit together, that they're puzzle pieces, but it certainly doesn't rise to the level of a definition, lexicography, or disavowal of Figure 40.

[00:02:30] Speaker 02:
So going back to the prosecution history, and importantly, when adding the language, when adding those amendments to the claims, the applicant stated that those claim amendments, and this is at Appendix 1347, Those claim amendments covered the embodiment illustrated in Figure 40, and more importantly, as described in the associated disclosure. So not only did the applicants, when they added that claim language, instruct us to look to the figure, but also to the associated disclosure. That language is critical.

[00:03:00] Speaker 02:
Both Globus and the Board below, for the most part, ignored that second part of their statement focused exclusively on the figure and unidentified portions of that figure.

[00:03:12] Speaker 02:
looking to the disclosure, the associated disclosure that's at column 15, excuse me, column 13, lines 25 through 35, the specification uses the exact language as the claims. It states the first and second side portions include a bridge. I'll get to that in a moment. And just like the claims, a first ramp portion and a second ramp portion and identifies those as elements 306, 308, 310, 312. That's the specification. Looking at the figures, the The figures at Elements 306, 308 disclose the ramped portions, and they're disclosed as being mirrored.

[00:03:48] Speaker 02:
They're shown as being mirrored or having the same angle of inclination.

[00:03:53] Speaker 02:
There's no dispute on any of this.

[00:03:54] Speaker 00:
There's no dispute that the applicant stated during the prosecution that the complaint... Just following up on some of the questions posed to you by Judge Stark, there is that singular reference to complementary in the specification, but if you look at, for example... Column 17, I would say in the areas of around lines 18 through 30, once you've had a chance to look at that, what, if any, relevance do you believe this portion of the specification should have with respect to the claim construction for the disputed limitation?

[00:04:34] Speaker 02:
Your Honor, you're referring to the portion that starts in an embodiment, the first grant portion.

[00:04:39] Speaker 00:
Yes.

[00:04:40] Speaker 02:
Approximate the first end.

[00:04:46] Speaker 02:
I don't know that that really informs what it means to be complementary. It does give the location of the rent portions, but I'm not sure I follow. I don't think that that portion necessarily informs what the phrase complementary means.

[00:05:04] Speaker 00:
Well, why I at least took you to that, because if you look at the relevant claim language, and what I was asking about was the disputed limitation, right? It says we're in the first ramp portion of the first end plate, and the second ramp portion of the second end plate are complementary with one another. So I was then taking it as part of a specification that at least talked about these pertinent ramped portions, and I was just wondering if you believe any of that interplays into how we should understand the term complementary.

[00:05:34] Speaker 02:
Well, I think in In one sense, and I was about to get to the bridge, I think in one sense it does dictate that it really makes it distinguish between the bridge portion and the ends of the upper and lower surfaces where the ramp portions are located. So in terms of where these portions are located, I think the specification is consistent with our position that those ramped portions really can't be the bridge. They have to be those ramped portions as described in the specification.

[00:06:06] Speaker 02:
Did I answer your question, Your Honor?

[00:06:07] Speaker 00:
Yes, you can move on.

[00:06:10] Speaker 02:
So, again, getting back to our point, again, there's nothing, there's no dispute on anything that I've raised, the statements and the specification, the statements and the prosecution history. The Board's construction, just to tie that up before I move on to Globus' points, would exclude the very embodiment that the claims were intended to cover, and that's the Figure 40 embodiment. Again, our construction embraces both their construction and the dictionary definition, as well as the figure 40 embodiments.

[00:06:38] Speaker 03:
Can I just confirm that I understand the distinction between the parties? If there were...

[00:06:45] Speaker 03:
the ramped portions that we're interested in of the end plates that were each at 45 degree angles with respect to the horizontal plane between them, that would meet your construction because you want to include they would be mirrored if they're each 45 degrees, but it would also meet their narrower construction, I think, because they would complete each other by definition, I think.

[00:07:11] Speaker 02:
I believe I won't speak for counsel, but I do believe that under their construction, they would exclude if we're talking about, if I understand your hypothetical, if we're talking about something that would look like more or less a greater than symbol. Is that fair?

[00:07:25] Speaker 03:
Like a greater than symbol? Is that what you're saying? Yes. If the two ramped portions of the end plates, which is what the claim directs us to, that's the angle we're concerned about, right? If they were each essentially 45 degree angles, so when you put the thing together, they would snugly fit together. I assume he's going to say that's within the scope of his construction, but it would be within the scope of yours.

[00:07:49] Speaker 02:
It would absolutely. I'm not entirely sure what counsel will say. I think that's kind of what the examiner said during prosecution, that if you take those upper and lower halves, take them apart, they snug together perfectly.

[00:08:01] Speaker 02:
So that's what the examiner said. We agree with that.

[00:08:04] Speaker 02:
So I don't know that they will say that's excluded, but it certainly is incorporated into our construction, or intended to be, at least.

[00:08:13] Speaker 02:
So I'll move on to Globus's position.

[00:08:16] Speaker 02:
Globus's attempts to justify the board's construction below. First, Globus points to elements of Figure 40 that allegedly disclose the ramp portions that physically touch or complete one another. And specifically, Globus points to angled portions that are part of the bridges in 314. These angled portions that they point to are not labeled. They're not described. They circle them. They pointed to them, the specification never refers to that portion of the bridge.

[00:08:46] Speaker 02:
Element 314 is described as a bridge, not a ramp. That's not just semantics. Not only is element 314 described as a bridge, the spec describes it as performing a bridge function, never as a ramp.

[00:09:00] Speaker 02:
And this is at, for example, Appendix 165, Column 13, 32 through 34.

[00:09:07] Speaker 03:
The Board seemed to agree with Globus, I would say as a factual matter, that that's the angle that they were referring to in the prosecution and that, therefore, Figure 40 would all be consistent with their Do I have to review that for substantial evidence?

[00:09:28] Speaker 02:
I don't think that's a factual issue, Your Honor, because it falls into what is covered. Remember the statement in the prosecution history was that the amendments cover the embodiment of Claim 40 and the associated disclosures. So we're still talking claim scope. And the reason that can't be a ramped portion is because it's not a ramp. It's never described as a ramp. It's never performing a ramped function. So the board and Globe is focused on only one thing.

[00:10:00] Speaker 02:
Is that portion complementary? And that fits, they point to that because if you look at it, yes, it fits the construction of mating to one another, completing one another. But it's not a ramp. It's expressly described in columns 13, 32 through 34 as the first and second side portions each can include a bridge portion That connects the first ramp portion. So far from being a ramp, they connect the bridge portions. So that cannot be the claimed ramp portions.

[00:10:32] Speaker 03:
I know we're into your rebuttal, but I would like to know your position on the other prior art references that were before the board. I don't know if they were before the examiner that appear to use complementary in the narrower way that the board did rather than the way you prefer.

[00:10:50] Speaker 02:
Again, we don't, so a lot of those statements I think are vague, but there are statements and there are figures that show angles and ramps that I think are complementary to each other in the way that Globus would say. That is not inconsistent with our position. Again, we're not saying that the term excludes angles that meet with one another and complete one another, but based on how this is used in the spec, and I know your honors are familiar with the law, but the spec is the best place to look for a definition of the claim term, and the applicant specifically told us that it must include the figure 40 embodiment.

[00:11:28] Speaker 02:
So whether the prior art discloses and uses the term complementary in a way that is consistent with what the board found really isn't the issue.

[00:11:38] Speaker 00:
The issues that here, it must include... Are you contending anything in terms of lexicography or disavowal just based off of the statements you were saying? Are you continuing anything with respect to lexicography or disavowal based off of the statements you were just saying in terms of interpreting the term in dispute?

[00:11:55] Speaker 02:
Our point is that there's nothing in the spec or the prosecution history that rises to a level of disavowal of claim scope. And it's really just looking at the term in light of the prosecution's history and the specification that the applicants and the inventors intended it to be broad enough to cover at least the figure 40 embodiment. So this is not a typical case where we have lexicography and a disavowal and defining one term to be another. It's an intent of the inventors in looking at what they said and that this term should be broad enough to include at least that figure 40 embodiment.

[00:12:30] Speaker 04:
You're well into your rebuttal now.

[00:12:34] Speaker 02:
I'm going to pause and reserve. Unless you have a question, Your Honor, I'll reserve the rest of my time. Thank you.

[00:12:49] Speaker 01:
Thank you, Your Honors, and may it please the Court. I want to address one point real quick. The Council keeps saying that the Board's construction excludes the Figure 40 embodiment. It doesn't. We included figures in our brief that show the complementary side ramp portions, that that limitation was specifically added to encompass.

[00:13:07] Speaker 03:
You're going to have to show me, because I don't see how. The only way you seem to get there is by telling us to look at the bridge angles, which have absolutely nothing to do with what the claim is talking about.

[00:13:17] Speaker 01:
Your Honor, I think context really matters. So that limitation was added, and this is a Dependix 1347. That limitation was specifically added to distinguish from the mirrored ramp portions of almost. The applicant specifically argued almost does not disclose complementary ramp portions, and then the applicant pointed to the Figure 40 embodiment. Figure 40 has mirrored ramp portions, but what distinguishes it from almost is the side ramp portions that fit together.

[00:13:45] Speaker 03:
Well, first of all, you don't say that. at 1347, right?

[00:13:50] Speaker 03:
You just have one sentence asserting almost does not disclose the first end plate, et cetera, et cetera. You don't tell us, I mean, you didn't tell the examiner what part of figure 40 you were looking at, did you?

[00:14:03] Speaker 01:
That's true, Your Honor, but again, almost has mirrored grant portions. So the only way we could have argued that almost doesn't teach complimentary grant portions is if we're excluding those mirrored grant portions from the scope of the claim.

[00:14:21] Speaker 03:
over almost even after you added this limitation. Isn't that right?

[00:14:26] Speaker 01:
That's correct, Your Honor. And our position is that the examiner's application was not reasonable. And the reason it wasn't reasonable is the examiner pointed to almost as mirrored ramps. And he did not say those mirrored ramps are complementary. He said you can orient the end plates of almost to have complementary ramp portions. And he actually shows, and this is Appendix 1335, where you can see the figures that the examiner reproduced. where he actually shows the end plates disassembled, and he points to the end ramps that are right next to each other.

[00:14:56] Speaker 01:
The way the examiner was applying the prior art was he was disassembling almost to make them complementary, consistent with our interpretation. And the reason that's not reasonable is our claim requires an assembled implant. The final limitation of Claim 10 specifically requires that the central ramp moves in one direction, the implant expands, moves in another direction, the implant collapses.

[00:15:19] Speaker 03:
The bottom line on the prosecution history is that the examiner very much thought that mirrored angles were within the scope of complementary angles.

[00:15:32] Speaker 01:
Your Honor, that is only if – I would disagree with that respectfully, Your Honor. The examiner believed that hypothetically, if you could disassemble an implant and rearrange the components to fit together, that is what the examiner thought complementary meant. And our position is that you can't do that based on the way the claim is written.

[00:15:49] Speaker 03:
Forgive me for taking you off onto a bit of a tangent. Tell me how, because I think that for me at least this is crucial, how is the Figure 40 embodiment captured within the scope of Claim 10 under the Board's construction?

[00:16:03] Speaker 01:
That's a good question, Your Honor, and I have an answer to that. If I could draw your attention to Red Brief, page 8, where we've annotated Figure 40 embodiment.

[00:16:15] Speaker 01:
to identify the side ramp portions that are complicated. And one thing I want to note is, in the IPR, the other side, now they're claiming that the ramp portion, ramp portion, only includes the thing that's called a ramp portion in our figures. That is not the position they took in the IPR. In fact, when the board initially rejected their claim construction, everything under the sun became a ramp portion when they were trying to fit the claim.

[00:16:36] Speaker 00:
In the interest of time, counsel, can you just answer Judge Stark's question? And you had us on page eight, so keep going.

[00:16:42] Speaker 01:
Yes, Your Honor. Figure 40...

[00:16:45] Speaker 01:
we annotated figure 40 of the 731 patent to show the side ramp portions that are complementary. And we acknowledge, Your Honor, that that's not called a ramp portion in the specification. But the limitation was added to distinguish from the mirrored ramp portions of almost. Is this an end plate? They're both end plates. Yes, Your Honor, they're the side ramp portions of the upper and lower end plate.

[00:17:09] Speaker 01:
So the same end plate that has the quote-unquote ramped portion.

[00:17:13] Speaker 03:
The language of the claim is wherein the first ramped portion of the first end plate and the second ramped portion of the second end plate are complementary with one another. So where is the first end plate in figure 40 on page 8?

[00:17:29] Speaker 01:
Your Honor, I believe it would be, I don't know the number off the top of my head. I think one of them is 16. Okay.

[00:17:35] Speaker 03:
Yeah, isn't it at, let's just say, at the front of the device, the left side of the device is the first end plate in the embodiment depicted in Figure 40? I would say it's the top plate. Okay, fine. Well, I mean, we know from Figure 43, the bottom line is we know from Figure 43, which is the same embodiment shown in Figure 40, correct? Correct. I believe so, Your Honor. We know that the things you're pointing to with your red arrows are not the ramped portions that the claim is talking about.

[00:18:07] Speaker 01:
I guess my response, Your Honor, would be where do the claims limit the ramped portions to being at the end of the end plates?

[00:18:16] Speaker 03:
Well, they limit them, excuse me, to being the first end plate.

[00:18:21] Speaker 03:
And the second end plate, which I thought you just acknowledged, are not the places that your errors are pointing.

[00:18:28] Speaker 01:
Your Honor, I think maybe the confusion is the entire upper plate is an end plate and the entire lower plate is an end plate. There's an upper end plate and a lower end plate.

[00:18:40] Speaker 04:
I don't know if this is… topic but you had said something about how before the board there was on the other side a recognition that there could be a variety of ramped surfaces that were not the ones given item numbers.

[00:19:09] Speaker 04:
In the claim, the claim begins with a first end plate, a lower side, a ramp surface, the ramp surface extending from the lower side, et cetera, so that later when there's talk of the ramped surface, does that...

[00:19:32] Speaker 04:
Limit to one a particular ramped surface, or does that just mean whatever ramped surface we have found for the opening clause is the one we're talking about, but there can be a variety of ramped surfaces on these end plates?

[00:19:54] Speaker 01:
Correct, Your Honor. And if you—oh, I'm sorry.

[00:19:56] Speaker 04:
No, that does seem to me, on its face, to be right. Where in the IPR proceedings did the other side acknowledge, recognize, affirmatively promote the idea that there can be a number of different ramped surfaces on these end plates, more than two, more than one at each end?

[00:20:19] Speaker 01:
Yes, Your Honor. When the Board had initially construed the claim to mean completing one another, In the reply brief, they came up with a new theory where they were trying to map the claims to almost and find surfaces that they could call ramp portions that are complementary under the board's construction. And so in their reply brief, they were taking a very liberal view of what ramp portion was. They were not taking the position that ramp portion—and we, Your Honor, disagree that ramp portion is limited to the specific thing called a ramp portion in the specification— But they were not taking that position in the IPR in their reply brief.

[00:20:57] Speaker 01:
They started to point to many different things as potentially being ramped portions because they were trying to fit almost into the board's construction.

[00:21:05] Speaker 04:
So Mr. Glass, as I recall his argument, I think made a point of saying it's not just figure 40 that this claim language was used.

[00:21:21] Speaker 04:
that when the claim language was added, provided the written description support, but also column 13, lines 25 to 34 or something, description of it, that that language was added to cover. Doesn't that suggest that the added language had to be referring to the specific items identified in that, in those lines as ramp surfaces.

[00:21:53] Speaker 01:
Your Honor, I would disagree with that because if you look back at what, I guess the main question is why was this limitation added? What was the applicant trying to distinguish by adding complementary? The examiner had already pointed to almost. And so when the applicant, and this again is back at appendix, it's a single paragraph.

[00:22:12] Speaker 01:
And let me find it real quick, Your Honors.

[00:22:16] Speaker 01:
It's Appendix 1347. If you read the entire paragraph in context where the applicant adds the complementary limitation and says that is not disclosed in OMOS and then points to Figure 40.

[00:22:30] Speaker 01:
The only way the applicant could have been arguing that almost does not teach complimentary ramp portions is if the mirrored ramps of almost are not included within complimentary. And that's consistent with the ordinary meaning of complimentary. Oh, go ahead, Your Honor.

[00:22:45] Speaker 04:
Go ahead.

[00:22:46] Speaker 00:
Counsel, in terms of Red Brief 8, so just kind of wrap it up on that, for Figure 40, are the two red arrows that are on page 8 of the Red Brief pointing to the bridge portion?

[00:23:02] Speaker 01:
The specification calls them a bridge portion, but they clearly have ramps on them. And we're not aware of any proposal by them that ramp portion has some specific definition.

[00:23:14] Speaker 00:
I mean, I agree that the specification— Would the call-outs 306, 308, 310, and 312 in the specification disclose the first and second ramped portions?

[00:23:25] Speaker 01:
Correct, Your Honor. They are.

[00:23:26] Speaker 00:
Okay. And then in terms of the specification and the use of the complementary term, You agree that there's just that one singular use that we discussed with opposing counsel in the specification in the context of complementary texturing or engagement features, correct?

[00:23:45] Speaker 01:
Correct, Your Honor.

[00:23:47] Speaker 00:
What, if any, relevance do you think that single use of complementary in that context in column 8 would be to understand the meaning of complementary with in the disputed limitation of the claim at issue.

[00:24:04] Speaker 01:
Yes, Your Honor. To answer your question.

[00:24:07] Speaker 01:
That's the whole shebang right there, right? What does complementary mean? The only evidence we have in the intrinsic record in the specification is the usage, that loan usage in the specification. And that is referring to textures that fit together. And that's consistent with the board's claim construction.

[00:24:24] Speaker 00:
What about the fact that this part of the specification is pointing to figure 17 as opposed to other parts of the specification that we talked about that were pointing to figure 40? Does that potentially... give you some pause about relying on this portion of the specification to understand what complementary means in the actual claim language?

[00:24:46] Speaker 01:
No, Your Honor. Actually, I believe it supports our position because if you look at what complementary is describing in that usage, it's talking about two things that fit together.

[00:24:56] Speaker 03:
If we look at that the other way, though, why did they go on to add all that verbiage about things fitting together and textured and you know, whatever, how they add to one another if that was all inherent already in the use of the word complementary.

[00:25:13] Speaker 01:
Well, I think they're just giving examples of different ways that you can accomplish that, right? You can do it via texturing. You can do it via engagement features. I mean, I think it's just an applicant adding additional disclosure. So you would say it's just redundant of the word complementary? I wouldn't. I mean, redundant in a sense, but I wouldn't say it's redundant because it's an applicant adding specific iterations of what that could look like, right?

[00:25:35] Speaker 03:
I'm sorry. Can I take you back to the prosecution history, 1347?

[00:25:39] Speaker 03:
Literally what the applicant said was almost in contrast, does not disclose a first end plate having a first side portion, et cetera, and a second end plate having a second side portion. So again, they're not just saying as broadly what almost doesn't disclose as you need them to say. They're specifically pointing us to the ramped portions that That are not the ones that you're now telling us in your red brief are important.

[00:26:12] Speaker 03:
Maybe I'm not following you properly.

[00:26:15] Speaker 03:
When they say almost does not disclose a first end plate having a first side portion with a first ramp portion and a second end plate with a second side portion, that are complementary, right? Yes, Your Honor. Aren't they indisputably talking about something up here in the front of the figure you recreated in a brief and not the things that you point to at the bridge that you admit the specification calls the bridge and not the end plate ramped portions?

[00:26:42] Speaker 01:
I think that's right, Your Honor. And I mean, unless I'm misunderstanding you, I think that supports our position because that was the distinction between figure 40 and the almost reference. Figure 40 has the side, you can call them bridges, that's fine. I mean, in our view, they clearly qualify as ramp portions. The side portions that fit together, where almost has mirrored ramps, so does figure 40. So I just, I don't see how a distinction could have been made if anything else is being referenced.

[00:27:08] Speaker 03:
Two just very quick questions. The 45, 45 degree...

[00:27:12] Speaker 03:
embodiment.

[00:27:14] Speaker 03:
Do you agree that, as I try to understand what's in dispute here, those would be mirrored if they're in the right place, as the claims requires, and they would also fit together. So therefore, they would be within the scope of both of your constructions.

[00:27:31] Speaker 01:
I'm having trouble visualizing what you mean by fit together means they have to come together to some degree.

[00:27:38] Speaker 03:
I don't know if they're... If they're 45 and 45, can we just agree that that means they're going to touch each other when you put them together?

[00:27:47] Speaker 03:
Just accept that as a premise.

[00:27:49] Speaker 01:
I'm thinking 45, and I'm struggling to visualize it in my head.

[00:27:54] Speaker 03:
Well, what do you mean then when one completes the other? They come together.

[00:27:59] Speaker 01:
They fit together, right? They come together.

[00:28:01] Speaker 03:
They touch one another.

[00:28:03] Speaker 01:
Right, and I think that's fair to say.

[00:28:06] Speaker 04:
Including touching one another at a single point to form an angle?

[00:28:12] Speaker 01:
I don't know if, again, I'm struggling to visualize that. I don't think that's consistent with what the figure 40 embodiment shows, or even the figure 50 embodiment also has an example of side ramps.

[00:28:23] Speaker 00:
But following up on my colleague's good questions, what does complete each other really mean? You said they need to fit together.

[00:28:32] Speaker 00:
How much in terms of touching needs to happen? Is there – do we need a construction of the construction is what I'm asking.

[00:28:38] Speaker 01:
Your Honor, I would say no. For the purposes of this appeal, really the central issue is whether or not complementary – the plain order meaning of complementary can include mere grant portions, right? I mean, in almost and in Chung, those grant portions cannot – fit together in any way because they're separated by a central wedge or distal wedge, right? And so if the court answers that in the affirmative, that complimentary doesn't include mere rent portions, then the board's decision should be affirmed. I mean, it's that simple because the prior can't invalidate the claims. Your Honor, I was wondering if I could have just one more minute to make one final point.

[00:29:12] Speaker 01:
Thank you, Your Honors.

[00:29:14] Speaker 01:
If you look at all of the evidence presented, there is not a single piece of evidence other than the examiner's unilateral application of the claims to the prior art that support complementary, including mirrored, ramped surfaces. There's just not.

[00:29:27] Speaker 04:
Again, the specification doesn't use... I don't think you've added anything to what you've just gone over, so I think we'll call it.

[00:29:34] Speaker 01:
Thank you, Your Honor.

[00:29:34] Speaker 03:
Housekeeping, the pages of the briefing below that you referenced, are they in our appendix?

[00:29:39] Speaker 01:
They should be in the appendix, Your Honor. We referenced it in the background. It's the reply brief of them? Yes, sir. Yes, Your Honor.

[00:29:46] Speaker 01:
Thank you. Thank you.

[00:29:51] Speaker 02:
Thank you, Your Honors. I just have a few very brief points.

[00:29:55] Speaker 02:
Globus's position on whether the Claim 10 maps to Figure 40 rests entirely on whether the portions that they pointed to can be ramped portions. I'd just like to point out, remember what this device is. This is something that sits between two vertebrae of your spine.

[00:30:12] Speaker 02:
Critically, they cannot slip. Their own experts said this is at 2057 through 2058 in the appendix, that one of the points of the invention is to decrease lateral slippage. If that part of the invention was acting as a ramp, you would have lateral slippage, which would be devastating to the patient, and would be contrary to the invention. It's their own expert statement.

[00:30:35] Speaker 04:
What, in your view, is the role of these ramped portions?

[00:30:40] Speaker 02:
It's actually specified very... Just explain it. It's converting lateral motion into horizontal motion. You have a driving ramp, looks like a greater than symbol, and you have the ramped portions that also look like greater than symbols. It drives in laterally and pushes them apart. It drives in horizontally, excuse me.

[00:31:00] Speaker 04:
And the mirror arrangement would have the effect of having the upper portion rise together rather than like this.

[00:31:12] Speaker 02:
Exactly. And this is described specifically, column 16, lines 2 through 7.

[00:31:19] Speaker 02:
I think I got that right. But it describes how the ramped portion, the driving ramp, pushes against the first ramp. This ramp portion is 30608.

[00:31:28] Speaker 02:
And in this manner, the driving ramp also acts to push the end plates 14, 16 outwardly into the expanded position.

[00:31:36] Speaker 02:
I'd also like to just address this notion in the prosecution history that the examiner's only position was that you have to take these things apart and mash them together. That's incorrect. What the examiner stated, this is at 1333, the examiner stated that excuse me, it's at 1335, that almost disclosed the ramportions because they have the same angle of inclination. Then he went on to say, but to further prosecution, you can also take these apart.

[00:32:08] Speaker 02:
So he essentially has the exact same view that we have. He probably used better words, frankly. The same angle of inclination or mirrored angles would be covered, as well as pieces that fit together.

[00:32:21] Speaker 03:
Do you have a response to the argument that in your reply brief below you took an inconsistently expansive view of ramped portions?

[00:32:29] Speaker 02:
We did. You know, below we were dealt the hand that we had, and we had to look in the specification, excuse me, in the prior art for aspects that matched a claim construction we didn't agree with. So, yes, we pointed to different portions that were ramped that fit together.

[00:32:48] Speaker 02:
but they fit the examiner's, excuse me, they fit the judge's construction, which we opposed and we said was incorrect.

[00:32:57] Speaker 02:
I have nothing further, Your Honors.

[00:32:59] Speaker 04:
Thank you. Thanks to both counsel.