[00:00:00] Speaker 03:
Next case for argument is 24-2228, manufacturing resources versus squires.

[00:00:08] Speaker 00:
Good morning, Your Honors.

[00:00:09] Speaker 00:
May it please the Court?

[00:00:11] Speaker 00:
There's an error that flows across both the prior findings here and the

[00:00:16] Speaker 00:
that is the board's failure to consider all the evidence.

[00:00:20] Speaker 00:
That's a legal error.

[00:00:22] Speaker 00:
And what it results in is factual determinations that are not supported by substantial evidence.

[00:00:26] Speaker 00:
And so I'll begin with NAW briefly and then move to the secondary considerations if I may.

[00:00:31] Speaker 00:
So in relation to NAW, specification of NAW throughout the specification and the figures discloses embodiments that have through holes through the bottom plate

[00:00:41] Speaker 00:
Which the bottom plate is the back of the casing.

[00:00:45] Speaker 00:
It also says you might have the holes only on the sides.

[00:00:49] Speaker 00:
You could have the sides, yes.

[00:00:50] Speaker 00:
It says you could do both.

[00:00:51] Speaker 00:
It gives you options.

[00:00:52] Speaker 00:
Right.

[00:00:53] Speaker 00:
And the reason it has, well, and the other thing is every claim in NAW that recites through holes, recites through holes through the bottom plate.

[00:01:00] Speaker 00:
So if you look at, for example, Appendix 17.3.

[00:01:03] Speaker 00:
But the question is what the whole document teaches.

[00:01:06] Speaker 00:
Right.

[00:01:07] Speaker 00:
And that's exactly the question, Your Honor.

[00:01:08] Speaker 00:
And so there's no evidence in the record that suggests that the board looked at any of the additional disclosures and not.

[00:01:14] Speaker 00:
That's the legal error.

[00:01:15] Speaker 00:
But it results in factual findings that have no support in the record.

[00:01:20] Speaker 00:
And so, for instance, the board relies, as we probably went on ad nauseum, on the one clause in one sentence in Nod that says, it's sort of a catch-all that you could put holes anywhere.

[00:01:31] Speaker 00:
The very next sentence, however, clarifies that.

[00:01:34] Speaker 00:
It says, that is, the through holes may be formed on a bottom plate and in any one or more of the first to four side walls.

[00:01:43] Speaker 00:
This is in the appendix of 1724.

[00:01:45] Speaker 00:
And the board admits that this renders the entire passage ambiguous.

[00:01:50] Speaker 00:
This is in their decision to Phoenix 38.

[00:01:54] Speaker 00:
So even if the board were correct that that passage is ambiguous and in some way supports their finding, that's not enough to provide a motivation to want to skill in the art to make the proposed modification to Na in which the bottom plate has no through holes.

[00:02:13] Speaker 00:
And so for that reason, I think the decision could be reversed.

[00:02:15] Speaker 00:
But at the very least, the decision should be vacated.

[00:02:18] Speaker 01:
Could I just ask you a basic question?

[00:02:20] Speaker 01:
I would have thought, let's just set aside the implication of the last sentence that you said, the that is a sentence.

[00:02:29] Speaker 01:
If a reference expressly says, in another embodiment, you could have the holes only formed in the sidewalls,

[00:02:39] Speaker 01:
That's an express disclosure.

[00:02:41] Speaker 01:
It's not a modification of the prior art reference, right?

[00:02:45] Speaker 00:
That's true.

[00:02:46] Speaker 00:
I think your example, but the board's findings were on appendix 34 that the constricted convection channel is only taught based on the modification of not that Samsung proposed.

[00:03:02] Speaker 02:
Maybe the right way to say it is not using the word modification, which actually does seem like the wrong word.

[00:03:11] Speaker 02:
Not teaches both things.

[00:03:13] Speaker 02:
Holes in the bottom, no holes in the bottom.

[00:03:16] Speaker 02:
Two different teachings express teachings.

[00:03:19] Speaker 02:
So the word modification seems wrong, but it's not wrong in a way that helps you.

[00:03:26] Speaker 00:
So I think modification is the right word.

[00:03:29] Speaker 00:
I think what's clear from the board's, well, clear-ish, from the board's decision is they found that Nod didn't disclose a bottom plate with no holes.

[00:03:38] Speaker 00:
And so on appendix 34, they were forced to rely on a modification of Nod, the one that Samson proposed.

[00:03:43] Speaker 00:
And that becomes even more clear when you look at appendix page 38.

[00:03:46] Speaker 00:
They say, although the two sentences in the passage may be somewhat ambiguous, when read together, we find that the expressed statement, to your point, Judge Tarano,

[00:03:55] Speaker 00:
that through holes may be formed only in the first to fourth sidewalls supports petitioners proposed modifications to exclude through holes.

[00:04:02] Speaker 00:
So I think what they're saying in artfully is that would provide the motivation to want to skill in the art to make the modification that Samsung proposed because it's not in NAW.

[00:04:11] Speaker 00:
So I don't think they went as far as you're suggesting.

[00:04:15] Speaker 02:
That seems very odd to me.

[00:04:17] Speaker 02:
That sentence in the passage which Judge Stoll was

[00:04:22] Speaker 02:
pointing to expressly contemplates holes in the bottom or no holes in the bottom.

[00:04:28] Speaker 02:
So when the board uses the word modification, perhaps you could justify it by saying that the main illustration in Na has holes in the bottom.

[00:04:41] Speaker 02:
So you can modify the illustration, but you're not modifying the teaching.

[00:04:46] Speaker 02:
And so you don't need to get into all of the Section 103 standard about modifying the teaching of one piece of prior art.

[00:04:57] Speaker 00:
I mean, if they had made that finding, one, you're right, but they didn't make that finding.

[00:05:03] Speaker 00:
It's not on the record.

[00:05:04] Speaker 00:
there's still no evidence that they consider the reference as a whole.

[00:05:07] Speaker 00:
So there's nothing in the record that suggests that they looked at the figures, at the specification, at the claims, and considered that in their analysis.

[00:05:14] Speaker 00:
And they're required to do that under the case law in regard to that or I would say farms.

[00:05:18] Speaker 00:
So by virtue of that, the fact finding, even if they had made that finding,

[00:05:24] Speaker 00:
There's no evidence in here that they said it was an anticipation.

[00:05:28] Speaker 00:
Essentially, it was disclosed.

[00:05:29] Speaker 01:
They said you had to have a modification.

[00:05:39] Speaker 01:
where they say, after they talk about modification in Mr. Gerswitz's testimony, they say, we also decline to narrowly read this passage, which is referring back to the specification, as only supporting exclusion of through holes from the sidewalls, because the person of ordinary skill is also a person of ordinary creativity, not an automaton.

[00:06:03] Speaker 01:
That's a sentence that's taken from KSR.

[00:06:08] Speaker 01:
You also read the specification from the point of a person of ordinary skill in the art.

[00:06:13] Speaker 00:
Right, but they're only addressing the one sentence and they're still relying on the KSR.

[00:06:17] Speaker 01:
There's a passage.

[00:06:18] Speaker 01:
I think they're relying on the two sentences together.

[00:06:21] Speaker 00:
Yes, the two sentences together.

[00:06:22] Speaker 00:
The ambiguous passage.

[00:06:24] Speaker 00:
Right.

[00:06:24] Speaker 00:
And they made the finding that it's ambiguous.

[00:06:27] Speaker 01:
What did you say they said the finding?

[00:06:29] Speaker 01:
No, they said, although the two sentences in this passage might be somewhat ambiguous when read together, that's what they said.

[00:06:38] Speaker 01:
I don't think that's a finding that it's ambiguous.

[00:06:42] Speaker 00:
Is it?

[00:06:43] Speaker 00:
Well, what it is is a fine, if they, if they could look at just the sentence, one sentence in the, in the specification without referencing anything else in the patent, there's nothing else there.

[00:06:54] Speaker 00:
I don't think there's enough to support the modification.

[00:06:56] Speaker 00:
I don't think it expressed disclosure, but perhaps that's more supportable than what they actually did, which is they continued to look at NAW, which is what they should have done.

[00:07:03] Speaker 00:
They went to the second sentence.

[00:07:05] Speaker 00:
And they said, when we look at those two sentences together, the passage is somewhat ambiguous.

[00:07:09] Speaker 00:
But we still find support.

[00:07:11] Speaker 01:
They say it might be somewhat ambiguous.

[00:07:14] Speaker 00:
I'm just saying, I just don't want to overstate it.

[00:07:16] Speaker 00:
I understand.

[00:07:17] Speaker 00:
I read that as it's ambiguous.

[00:07:19] Speaker 00:
I mean, it might be ambiguous as opposed to it's clear.

[00:07:22] Speaker 00:
I think it's a difference.

[00:07:23] Speaker 01:
And I don't think they provide it's- I was just asking you if that last sentence of that paragraph then pulls back on that contention.

[00:07:30] Speaker 01:
and says, in any event, we also decline to narrowly read this passage as only supporting exclusion of through holes from the sidewalls.

[00:07:39] Speaker 01:
That's how I was reading it, and that's why I was asking for your perspective.

[00:07:45] Speaker 00:
It might, but when they talk about KSR and they talk about not being an automaton, then it seems more clear to me that they're talking about 103.

[00:07:54] Speaker 00:
And so we're back to that being the motivation to modify NAW as opposed to an express disclosure that it's just disclosed.

[00:07:59] Speaker 00:
So I think, I understand your point and I agree it could, but it also suggests and I think reinforces our point that it's a 103 and they didn't provide, they said supports position to position.

[00:08:10] Speaker 00:
I think what they meant is provides a motivation to modify.

[00:08:14] Speaker 00:
They just didn't say it.

[00:08:15] Speaker 00:
And we have no evidence that they considered anything else.

[00:08:19] Speaker 00:
That's all I have on NAW.

[00:08:20] Speaker 00:
I'd like to move this thing to considerations if I can.

[00:08:24] Speaker 00:
Okay, so the secondary consideration is the same issue, that they didn't consider the totality of the evidence.

[00:08:30] Speaker 00:
That's our argument.

[00:08:32] Speaker 00:
I think it's correct and it leads to evidentiary findings that don't have substantial evidence support.

[00:08:38] Speaker 00:
So I'd like to start with a stone email, which is the email that Samsung sent our inventor.

[00:08:42] Speaker 00:
And what was said in that was indoor spaces, I'm sorry, I see lots of opportunities for collaboration in indoor spaces.

[00:08:52] Speaker 00:
where we can embrace the MRI technology and blend it in with Samsung displays.

[00:08:58] Speaker 00:
The board's finding is at appendix 55 on this.

[00:09:02] Speaker 00:
The board finds that that is related to a business model.

[00:09:06] Speaker 00:
That finding, I don't think, is supported by the evidence.

[00:09:09] Speaker 00:
He says outdoor display or outdoor spaces.

[00:09:12] Speaker 00:
He talks about embracing the technology.

[00:09:14] Speaker 00:
He talks about blending it in with the displays.

[00:09:17] Speaker 00:
Now, it doesn't say exactly what the technology is.

[00:09:21] Speaker 00:
But I still think the finding of the board is not supported by substantial evidence.

[00:09:25] Speaker 00:
The question is, how do we know what the technology is that he's speaking of?

[00:09:30] Speaker 00:
And so we rely on Richardson Vicks for the proposition.

[00:09:32] Speaker 00:
You have to look at the record in its entirety.

[00:09:34] Speaker 00:
And so what we rely on is the Samsung teardown.

[00:09:37] Speaker 00:
So the board notes that appendix 48 through 49, that Samsung purchased our displays and they did a competitive teardown where they tested at least the thermal properties.

[00:09:48] Speaker 01:
Do I remember correctly that they also said that at the time of that teardown, Samsung's device already existed?

[00:09:57] Speaker 00:
Yeah, they did say that.

[00:09:58] Speaker 00:
That's a finding.

[00:09:59] Speaker 00:
And that's not really germane to the argument today, although it's in our briefing.

[00:10:03] Speaker 00:
That was how they found it wasn't copying or concluded it wasn't copying.

[00:10:06] Speaker 00:
My point is a little bit different point, that they didn't look at the evidence in its entirety.

[00:10:09] Speaker 00:
And so when Mr. Stone tells our inventor, you're doing great, we'd like to take this and acknowledge you in putting out displays.

[00:10:16] Speaker 00:
You don't know from that email without looking at anything else, which is the position that the board took and the position the PTO endorses, you don't know what that's about necessarily.

[00:10:26] Speaker 00:
You have to look at the totality of the evidence.

[00:10:28] Speaker 00:
The way we fill that gap is with the teardown.

[00:10:31] Speaker 00:
And what we showed in the teardown, this is at 4593, is the Samsung displays have a constricted convection channel.

[00:10:38] Speaker 00:
They use a different word.

[00:10:40] Speaker 00:
It's in our brief, but it's redacted because it's considered confidential.

[00:10:43] Speaker 00:
But the second words are convection channel.

[00:10:45] Speaker 00:
The first word is a synonym for constricted.

[00:10:49] Speaker 00:
So they had a constricted convection channel.

[00:10:51] Speaker 00:
They had the same thing.

[00:10:51] Speaker 00:
So now we know what Stone is talking about.

[00:10:53] Speaker 00:
But if you don't look at the evidence, you don't know that.

[00:10:55] Speaker 00:
You can't tell.

[00:10:56] Speaker 00:
So now we've established a nexus.

[00:11:01] Speaker 00:
So then we move on from that.

[00:11:02] Speaker 00:
What else do we know?

[00:11:03] Speaker 00:
Well, we introduced Mr. Palmer's testimony.

[00:11:05] Speaker 00:
What Mr. Palmer said, and actually we both cited Mr. Palmer's testimony, he said Samsung displays are great.

[00:11:12] Speaker 00:
It's a great company, great reputation.

[00:11:14] Speaker 00:
We don't contest that.

[00:11:15] Speaker 00:
He also said that Samsung displays work in hot and cold weather.

[00:11:20] Speaker 00:
That was the finding that the board set out in their decision.

[00:11:22] Speaker 00:
What they didn't set as the very next statement where Mr. Palmer said Samsung displays, one of the reasons they're great is because they work in hot weather.

[00:11:31] Speaker 00:
And the competitive displays don't.

[00:11:33] Speaker 00:
They fail.

[00:11:33] Speaker 00:
I think you would use the word blotchy or splotchy, right?

[00:11:37] Speaker 00:
So he is his testimony.

[00:11:39] Speaker 00:
Again, he sells them.

[00:11:40] Speaker 00:
He doesn't know what's in them.

[00:11:42] Speaker 00:
So he provides testimony that says that's the differentiator.

[00:11:47] Speaker 00:
So now if you take his testimony and put it back to the teardown, you have the nexus.

[00:11:52] Speaker 00:
And then the final point we made as to commercial success.

[00:11:55] Speaker 00:
So we know it makes a difference.

[00:11:57] Speaker 00:
We know that it's tied to the claim to invention.

[00:11:59] Speaker 00:
Now, does it make a difference in the market?

[00:12:01] Speaker 00:
And so if you turn, if you look at our brief, bring to these pages this term.

[00:12:07] Speaker 00:
So we, we look in our, in our patented response, we talked about the commercial success.

[00:12:11] Speaker 00:
This is Appendix 772.

[00:12:14] Speaker 00:
We talked about this in our brief at 18, but in the prior displays that did not have the constricted convection channel,

[00:12:22] Speaker 00:
We noted that they sold $5 million in the US for several years before they adopted the infringing constricted convection channel.

[00:12:30] Speaker 03:
And the year after they introduced the constricted convection channel, the sales... The time is running out and we have the record and we've got numerous secondary considerations issues.

[00:12:40] Speaker 03:
I'd like you to just take a minute before your time runs out to address claim eight, the dependent claim.

[00:12:45] Speaker 00:
And I think I can do it in less than a minute.

[00:12:47] Speaker 00:
There's two issues with that.

[00:12:49] Speaker 00:
The first one is that

[00:12:50] Speaker 00:
The board's construction, the PTO's arguments read out access.

[00:12:54] Speaker 00:
So there's three types of apertures.

[00:12:56] Speaker 00:
There's entry, exit, and access.

[00:12:59] Speaker 00:
And so according to the board's construction, the access apertures just let air in.

[00:13:03] Speaker 00:
That's not consistent with the spec or with the arguments we made.

[00:13:08] Speaker 01:
We also have an argument aside from the claim construction argument that the board was inconsistent in its analysis with respect to claim one as compared to claim eight.

[00:13:19] Speaker 00:
Claim four, yes, your honor.

[00:13:21] Speaker 00:
And we use the term nonsensical because for claim four, they said that the modified version of NAW meets a constricted convection channel

[00:13:31] Speaker 00:
But it has to be without the through holes.

[00:13:33] Speaker 00:
That's on 34 and then it's appendix 66 where they incorporate that into claim four.

[00:13:39] Speaker 00:
But then when they go to claim eight, they put the holes back and say as long as they let air in, they're access, they're access for air.

[00:13:44] Speaker 00:
Well, those two holdings are not, you can't put those together.

[00:13:49] Speaker 00:
They don't make any sense together.

[00:13:51] Speaker 00:
They didn't put that combination together until the final written decision.

[00:13:54] Speaker 00:
So our presumption was either they would find that you didn't have holes, and claim eight would be allowable, or they'd find you do have holes, and so they're all allowable.

[00:14:01] Speaker 00:
But somehow they, unfortunately, put the two together.

[00:14:04] Speaker 00:
And so for that reason, it should be vacated as well, especially to that claim.

[00:14:08] Speaker 00:
And so I'll reserve the rest of my time for rebuttal.

[00:14:11] Speaker 00:
Yeah, thank you.

[00:14:12] Speaker 00:
My minute.

[00:14:17] Speaker 04:
May I please record?

[00:14:19] Speaker 04:
I just wanted to clear up.

[00:14:21] Speaker 04:
something when it came to the Nah reference.

[00:14:24] Speaker 04:
I think just going back to the beginning of the conversation, there's a question about whether the court or whether the board was trying to modify the reference itself in like a 103 cents.

[00:14:39] Speaker 04:
And that's not what the board was doing.

[00:14:43] Speaker 04:
So we can look back at the

[00:14:45] Speaker 04:
Appendix, I think 38 was the appendix phase that we were talking about.

[00:14:50] Speaker 04:
So the reason why the word modification is used in the board's decision is because Samsung had prepared a modified version of figure two that encompasses the embodiment that we've sort of been talking about here and that's, at appendix 31 you can see that this is sort of the modified picture of figure two and they call it figure two modified.

[00:15:16] Speaker 01:
Is that, see how it says exhibits below that sentence on page 38?

[00:15:22] Speaker 01:
It says exhibit 1002, 1010.

[00:15:25] Speaker 01:
Are either of those referring to what you're talking about?

[00:15:30] Speaker 01:
Modified figure?

[00:15:32] Speaker 04:
It's actually reproduced.

[00:15:33] Speaker 04:
It may be easier to see on appendix 31.

[00:15:35] Speaker 04:
I can see that.

[00:15:37] Speaker 01:
I was just asking if those exhibits have anything to do with it, but I don't think they do.

[00:15:41] Speaker 01:
Okay.

[00:15:45] Speaker 04:
I think it was prepared by the expert.

[00:15:48] Speaker 04:
So that might be 1002-210.

[00:15:55] Speaker 04:
But in any event, that's what the modification is talking about.

[00:15:59] Speaker 04:
It's not talking about like a 103 modification.

[00:16:02] Speaker 04:
And the sentence I think that should lay this to rest is at the top of appendix 38, we find that an ordinarily skilled artisan would have known

[00:16:12] Speaker 04:
based on the passage to form or not form through holes in bottom plate and side walls.

[00:16:18] Speaker 02:
I think what you're saying is the second thing that I said about modification.

[00:16:24] Speaker 02:
The first thing was the word may be wrong now.

[00:16:26] Speaker 02:
And then the second thing was, well, actually the word is not wrong.

[00:16:30] Speaker 02:
It was the modification of a particular drawing, a figure in Nah that was being discussed.

[00:16:39] Speaker 02:
Exactly, yes.

[00:16:39] Speaker 02:
A modification of that figure that is expressly taught by that pair of sentences.

[00:16:44] Speaker 04:
Exactly, yes.

[00:16:46] Speaker 03:
Before, could you just deal briefly with claim eight and the tension that your friend identified, not with respect to the claim construction?

[00:16:55] Speaker 03:
Not the claim construction, okay.

[00:16:58] Speaker 04:
So this is sort of a strange argument because MRI arguments in the whole record below the board

[00:17:08] Speaker 04:
was that the independent claims cannot have holes in the constricted convection plate.

[00:17:14] Speaker 04:
That was the lead argument for the independent claims.

[00:17:18] Speaker 04:
And for the dependent claim eight, their argument is

[00:17:23] Speaker 04:
the plate needs to have holes in it.

[00:17:25] Speaker 01:
So their arguments were... I'm going to interrupt you for a minute because this is something that's bothering me too.

[00:17:29] Speaker 01:
So I want to just, in response to what you're saying, I hear what you're saying, but what if it's the nature of the size of the holes and what they let through?

[00:17:38] Speaker 01:
That's what their argument is, is the nature of the size of the holes.

[00:17:41] Speaker 01:
So bearing that in mind, I don't know that I think their position is inconsistent.

[00:17:46] Speaker 01:
My concern is that the boards might be.

[00:17:49] Speaker 01:
So why is the board's position not inconsistent?

[00:17:53] Speaker 04:
Well, I'm not sure if I would agree that that was MRI's argument.

[00:18:02] Speaker 01:
They argued that apertures are holes that only allow certain things through being the wiring, right?

[00:18:10] Speaker 01:
And in NA, where in the embodiment where there's holes, air goes through the holes.

[00:18:15] Speaker 01:
That's what you see in the figures in NA.

[00:18:18] Speaker 01:
So I was just concerned because when I looked at the analysis from the board, it seemed like in the way that the board's looking at those holes and not, it might be inconsistent as opposed to how the holes are in the specification of the patents.

[00:18:36] Speaker 01:
Do you see the difference?

[00:18:37] Speaker 04:
Well, Your Honor, I mean, that argument is more of a... That sort of goes back to claim construction because

[00:18:43] Speaker 04:
The claim construction argument is about the nature of the access, whether it's access to air or access to wiring or other hardware.

[00:18:52] Speaker 04:
So that was sort of the claim construction issue that MRI was arguing below.

[00:19:00] Speaker 04:
The problem with this, the way this has kind of come up, one, we do believe that MRI forfeited this sort of argument as an inconsistency between the board's analysis for the independent claims and the dependent claims.

[00:19:15] Speaker 04:
These embodiments for the independent claim, Samsung argued throughout its papers that there were two potential embodiments of Na that could cover claim one.

[00:19:27] Speaker 04:
One embodiment where there are holes in the constricted convection plate,

[00:19:31] Speaker 04:
and another embodiment where the holes are in the sidewall.

[00:19:33] Speaker 03:
Who just relied on the definition of convection plate as being the one without holes, right?

[00:19:38] Speaker 04:
The board relied on the second alternate, which is, yes, the embodiment where they are holes.

[00:19:45] Speaker 03:
So how do you get to claim A, where we're talking about the constricted convection plate being with holes?

[00:19:57] Speaker 04:
I mean, Your Honor, there is an inconsistency there.

[00:19:59] Speaker 04:
I mean, there does appear to be an inconsistency there from the board's decision.

[00:20:02] Speaker 02:
I'm sorry.

[00:20:03] Speaker 02:
Why do you call that an inconsistency, not teach us two things?

[00:20:08] Speaker 03:
I think the board... Did the board really reach the issue?

[00:20:14] Speaker 03:
I mean, I don't think the board concluded, and this definition can't include withholds.

[00:20:21] Speaker 03:
Maybe it did.

[00:20:23] Speaker 04:
The board's focus was on the...

[00:20:27] Speaker 04:
second embodiment of now with holes in the sidewalls.

[00:20:31] Speaker 04:
The board did discuss both the embodiments that Samsung presented, including the embodiment that had holes in the plate and the embodiment that did not have holes in the plate.

[00:20:41] Speaker 04:
So the board treated both of them in the independent claims, but it focused on the second embodiment

[00:20:46] Speaker 04:
Because MRI was arguing that the constricted convection plate of claim one could not have holes.

[00:20:53] Speaker 04:
It was a Swiss cheese approach.

[00:20:54] Speaker 04:
That was their argument all below and above board.

[00:20:57] Speaker 03:
So you think the board's analysis was a result of the debate that was going on before it?

[00:21:02] Speaker 03:
Exactly.

[00:21:02] Speaker 03:
But if we were to conclude this was kind of harmless error or whatever, we would conclude that the board in its definition included with holes and without holes?

[00:21:14] Speaker 03:
Yes.

[00:21:17] Speaker 02:
And I think Mr. Elmany said that in, I guess it was in the board's discussion of claim one, that it was only

[00:21:34] Speaker 02:
the withholds embodiment of NAHA that allowed the other requirements to be met, or maybe that was claimed for, I don't remember.

[00:21:49] Speaker 02:
I didn't remember the board saying that.

[00:21:51] Speaker 02:
thought the board said.

[00:21:52] Speaker 02:
That kind of teaches both things.

[00:21:55] Speaker 02:
We don't need to consider whether the requirement that was at issue, I think, about basically getting the convection, the heat to be actually removed, could work with the one

[00:22:08] Speaker 02:
one, because it does definitely work with the other.

[00:22:12] Speaker 02:
So one is sufficient, and it didn't say the other is not sufficient.

[00:22:17] Speaker 02:
That would be potentially an inconsistency, but I don't remember the board saying that.

[00:22:23] Speaker 04:
Yes, Your Honor, the board did not disparage the first embodiment of Nah.

[00:22:28] Speaker 04:
In fact, appendix 39, I think maybe makes this point on the top.

[00:22:37] Speaker 04:
It says that, this is for the related term, the constricted convection channel, but it does say, based on these teachings, we are persuaded by petitioner's contention that an ordinarily skilled artisan would have understood that the bottom plate 210 constricts airflow in order to achieve the desired convective cooling effect.

[00:23:00] Speaker 04:
And then goes on, this is particularly true given that petitioners proposed modification to not include holes 212 in bottom plate 210 based on Na's teaching.

[00:23:11] Speaker 04:
So there's both of the embodiments of Na are referenced in that section of the boards.

[00:23:17] Speaker 02:
Indeed, one could, in the absence of some other reason to think otherwise, understand the rejection to be the rejection of the argument made about Nah, whether the hold version or the not hold version, but is particularly clear in the not hold version.

[00:23:38] Speaker 04:
That's right, yes.

[00:23:45] Speaker 04:
I guess I can briefly talk about secondary considerations.

[00:23:51] Speaker 04:
I'd like to point out a couple things.

[00:23:53] Speaker 04:
One, on the praise.

[00:23:56] Speaker 04:
My friend referred to an email from Stoian with his appendix 3568.

[00:24:02] Speaker 04:
And I always want to reiterate, I believe he admitted that the email does not say what the technology is.

[00:24:10] Speaker 04:
And I think that is a clear reason to show a lack of nexus.

[00:24:16] Speaker 04:
If the evidence that's relied on to show praise does not identify the technology.

[00:24:21] Speaker 03:
Does the board make that point in its analysis?

[00:24:24] Speaker 04:
Yes, the board did look at the praise.

[00:24:43] Speaker 04:
This is the, in appendix 55, yes, this is the part where the board discusses the email and it basically says that it talked about a business model and not about, and there's, I believe I heard a new argument, which is to kind of fill the gap.

[00:25:00] Speaker 04:
I think my friend used the word gap to describe the email, not talking about the technology.

[00:25:05] Speaker 04:
To fill this gap, they're sort of trying to shoehorn in the teardown evidence.

[00:25:11] Speaker 04:
And this, I do not remember seeing this argument in their briefing anywhere.

[00:25:15] Speaker 04:
If they want to rebut that, that's fine, but I did not see that explicitly trying to tie the teardown, a part of the teardown analysis with this email.

[00:25:25] Speaker 04:
I don't think that they're linked in any way for what it's worth, but I think it's a new argument, not briefed.

[00:25:31] Speaker 04:
The next thing was the Palmer email.

[00:25:34] Speaker 04:
It had appendix 4506 and discussed

[00:25:40] Speaker 04:
and a pending 55 in the same place in the board's decision.

[00:25:43] Speaker 04:
And again, I believe I heard an admission that the Palmer email by itself does not talk about the claimed invention here, the constricted convection plate.

[00:25:55] Speaker 04:
And again, there was an attempt to shoehorn this teardown evidence into this email from Mr. Palmer.

[00:26:02] Speaker 04:
And I did not see that argument in their briefing to this court.

[00:26:06] Speaker 04:
If I'm wrong, then perhaps they can correct me.

[00:26:10] Speaker 04:
And in any event, there's no link between one email and a teardown.

[00:26:16] Speaker 04:
I don't understand how the two things could be viewed in combination unless there's some kind of link between the two.

[00:26:25] Speaker 04:
We have additional evidence regarding no presumption of nexus that maybe I could just mention quickly since I have time that it's important for the secondary considerations just to note that

[00:26:39] Speaker 04:
MRI, it argues that it has a presumption of nexus.

[00:26:46] Speaker 04:
It admits, I think on page nine of its gray brief, that there are additional unclaimed features to the claimed invention.

[00:26:54] Speaker 04:
But it does not analyze any of those admittedly existing unclaimed features.

[00:26:59] Speaker 04:
So there's no presumption of nexus either that could help them tie their secondary considerations to the claimed invention.

[00:27:08] Speaker 04:
Any questions from the court?

[00:27:09] Speaker 03:
Thank you.

[00:27:15] Speaker 00:
Thank you.

[00:27:15] Speaker 00:
I will try to use my 59 seconds wisely.

[00:27:18] Speaker 00:
I'll give you a few minutes.

[00:27:19] Speaker 00:
It's OK.

[00:27:20] Speaker 00:
I think I can get this quickly.

[00:27:21] Speaker 00:
OK.

[00:27:21] Speaker 00:
So the argument about the climate and the argument that we made.

[00:27:25] Speaker 00:
So the agreement we made in the Patent on a Response at appendix 762 and 763, and then throughout oral argument, for instance, appendix 967 and 968, is that you can have holes in the back.

[00:27:37] Speaker 00:
But those holes cannot disrupt the airflow.

[00:27:41] Speaker 00:
So if they disrupt the airflow, then you plug them.

[00:27:44] Speaker 00:
In the specification, it talks about the fact that you can have the access apertures, but you don't want them to disrupt the flow of the air across the back.

[00:27:53] Speaker 00:
So we make that argument consistently.

[00:27:55] Speaker 00:
I agree that the board didn't address it, but we have made that argument consistently.

[00:28:00] Speaker 00:
That's how the access apertures are different than an entry aperture or an exit aperture.

[00:28:07] Speaker 00:
So the PTO is doing the very thing that we complained about the board doing.

[00:28:11] Speaker 00:
They're endorsing the idea that if you look at secondary considerations, you look at an email and then you look at something else and you just ignore the fact that the email happened.

[00:28:20] Speaker 00:
That's not consistent with the law, which requires that you look at the totality of the evidence.

[00:28:24] Speaker 00:
And in a case like this, where it's on the papers.

[00:28:26] Speaker 00:
So we're submitting various different types of evidence.

[00:28:29] Speaker 00:
Our argument is that they incorporated our technology and then you have evidence that they appreciated.

[00:28:35] Speaker 00:
Mr. Palmer sells Samsung displays.

[00:28:36] Speaker 00:
He doesn't tear them down.

[00:28:38] Speaker 00:
He doesn't go inside of them.

[00:28:39] Speaker 00:
How would he know what's inside?

[00:28:41] Speaker 00:
He just knows that they work better.

[00:28:42] Speaker 00:
So our burden, which we met, is to go and show that they have the claimed invention.

[00:28:48] Speaker 00:
So yes, I admitted it.

[00:28:50] Speaker 00:
I admitted that the email doesn't say concerted convection channel.

[00:28:53] Speaker 00:
It would be surprising if it did.

[00:28:55] Speaker 00:
But the policy issue here is that I don't know how on papers you'd ever prove nexus.

[00:29:01] Speaker 00:
If you're required for every document that you submit to the Patent Office to have every detail about the claim of invention, that's just not how the evidence works.

[00:29:09] Speaker 00:
And I think with that, unless you have further questions, I'll... Thank you.

[00:29:12] Speaker 00:
Thank you very much.

[00:29:13] Speaker 00:
Thank you, Your Honor.