[00:00:00] Speaker 00:
dismantling company against Genesis Detectives.

[00:00:03] Speaker 00:
Mr. Breen.

[00:00:06] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:00:09] Speaker 04:
The Board's obviousness judgment in this case must be reversed because it was premised on improper hindsight reasoning.

[00:00:15] Speaker 04:
The Board failed to consider the teachings of the prior art as a whole.

[00:00:18] Speaker 02:
It was based on the Jacobson Declaration.

[00:00:20] Speaker 02:
Why wasn't that sufficient?

[00:00:21] Speaker 04:
The Jacobson Declaration is very, very conclusory, Your Honor.

[00:00:25] Speaker 04:
Mr. Jacobson did not make any attempt to address the teachings that are actually in the Caterpillar reference that would suggest against doing all of the modifications that he proposed.

[00:00:36] Speaker 02:
Well, it's not a single sentence.

[00:00:38] Speaker 02:
He explains why it would have been within the ability of someone skilled in the art to combine these two.

[00:00:48] Speaker 04:
Well, Your Honor, he does say that he believes it would have been within the skill level, but Your Honor said that he explained why, and I disagree with that.

[00:00:55] Speaker 04:
I don't think I see anywhere in Mr. Raymond's declaration where he explains any reason why a person skilled in the art would have made these changes.

[00:01:04] Speaker 04:
And that's what we're looking for in the obviousness analysis, is not just that someone could conceivably have done these things, but that someone would have found it obvious to do so.

[00:01:13] Speaker 02:
Well, that's a different question, but he explains how someone would have known how to do it, right?

[00:01:19] Speaker 04:
I disagree.

[00:01:20] Speaker 04:
I think he does pick apart portions of Caterpillar and suggests

[00:01:25] Speaker 04:
that somebody would have, for example, separated part of the lower jaw from the mounting mechanism.

[00:01:31] Speaker 04:
But he does not actually articulate any way that... Well, first of all, I mentioned a moment ago, he doesn't articulate why a person would do any of this, but he also doesn't articulate how a person would have done this in any way that resulted in operable device.

[00:01:44] Speaker 04:
And that's another problem that we have with the judgment here.

[00:01:47] Speaker 04:
We have, on the one hand, a declaration from Mr. Raymond

[00:01:51] Speaker 04:
who have explained after a sincere effort trying to follow the reasoning set forth by the board why one could not disassemble Caterpillar in this manner and turn it into a workable device because of the support plates interfering and the need to remove one or the other, which both cause other crippling defects to the device.

[00:02:11] Speaker 04:
But I actually think that's further along than where the board's error really lies, which is in starting with Caterpillar in the first instance.

[00:02:18] Speaker 04:
When you look at Caterpillar, it is fundamentally incompatible with the ideas that are pulled out of the rest of the secondary references because in terms of how to mount and pivot the jaw set in Caterpillar, it teaches the advantages of doing that in the exact opposite way that the secondary references in the records show.

[00:02:36] Speaker 04:
Specifically, Caterpillar reference teaches a jaw set that retains the pivot pin that connects the jaws to each other when that jaw set is being switched for one versus another.

[00:02:47] Speaker 04:
Removing a pivot pin in Caterpillar is described as a, quote, very labor intensive and time consuming activity, end quote.

[00:02:54] Speaker 04:
That's an A133.

[00:02:56] Speaker 04:
So not having to remove that pivot pin when you're replacing a jaw set is what makes Caterpillar a quick change device.

[00:03:03] Speaker 04:
It's literally what takes the process from hours down to minutes.

[00:03:07] Speaker 04:
And when we look at every other reference in the record,

[00:03:10] Speaker 04:
none of them have any quick change feature like that because they all require removal of that pivot pin in order to change.

[00:03:17] Speaker 02:
That's why we're talking about the combination of the two.

[00:03:20] Speaker 04:
Yes, yes, but when we're looking at the combination of the two, the board did not actually consider the full context of all the references on which it relied.

[00:03:28] Speaker 04:
Caterpillar is, it's a feature in Caterpillar to immobilize one job because that is the solution in the Caterpillar's teachings for how to avoid the need

[00:03:38] Speaker 04:
to insert and remove the pivot pin as part of the jaw mounting and dismounting.

[00:03:43] Speaker 03:
But in light of Ogawa, the jaw can be made movable.

[00:03:46] Speaker 04:
Well, Ogawa does have two movable jaws, but in Ogawa, that main pivot pin still needs to be inserted and removed as part of the jaw set being mounted.

[00:03:55] Speaker 04:
Now, Caterpillar teaches the only way in this record for how one could mount and dismount the jaw set without that main pin having to be part of the process.

[00:04:06] Speaker 04:
And as is explained in Caterpillar, that's time consuming.

[00:04:08] Speaker 04:
It also compromises the integrity of the jaw set, because every time you're inserting and removing the pin, there's the opportunity for contaminants, for example.

[00:04:15] Speaker 02:
Caterpillar teaches not using the pin as the attachment point.

[00:04:19] Speaker 02:
And the idea is, well, when you combine that with a gala, you wouldn't use the pin as the attachment point anymore.

[00:04:27] Speaker 04:
Yes.

[00:04:28] Speaker 04:
But, so yes, your honor is right.

[00:04:29] Speaker 04:
Caterpillar teaches don't use the pin as the attachment point.

[00:04:32] Speaker 04:
But the only way that Caterpillar teaches to achieve that goal and still have an operable device is to attach the jaw set some other way.

[00:04:39] Speaker 04:
And Caterpillar's solution was, well, attach it via one of the jaws.

[00:04:42] Speaker 04:
That way, you have the jaws connected to each other via the pivot pin.

[00:04:45] Speaker 04:
But you have the jaw set as a whole device attached via one of the jaws.

[00:04:51] Speaker 04:
And to do that, you had to immobilize that one jaw in the process.

[00:04:56] Speaker 04:
So in our view, that is a core foundational principle of what Caterpillar teaches.

[00:05:01] Speaker 04:
And it goes against that very principle of caterpillar to suggest that one would change caterpillar to then make the second jaw movable when immobilizing the jaw is what gets you the quick change feature that caterpillar was seeking to achieve in the first place.

[00:05:16] Speaker 04:
As I mentioned, every other reference in the record, including Ogawa, is not a quick change device because it requires that pin to be removed and inserted when the jaw sets are mounted or dismounted.

[00:05:28] Speaker 04:
And caterpillar is very critical of those designs.

[00:05:31] Speaker 04:
It overcomes the deficiencies of those designs in the way that I just described, and so immobilizing one of those jaws in Caterpillar really is the solution to those deficiencies.

[00:05:41] Speaker 04:
It's not just an incidental occurrence, and no person's field in the art under the Platts-Pack case or this court's prior precedent, such as in Ray Ratty, would be motivated to depart from that principle of operation, and we think the inquiry should end there.

[00:05:55] Speaker 04:
The primary reference Caterpillar is defective because it teaches

[00:06:00] Speaker 04:
a core principle of operation that goes contrary to what the board says the device should be modified to do.

[00:06:08] Speaker 04:
Now, the board also says that because other devices such as the Ogawa reference have two movable jaws, it would be obvious, as Your Honor said, to combine those teachings and make Caterpillar have two movable jaws as well.

[00:06:23] Speaker 04:
Assuming that a person skilled in the art could overlook the fact that this does depart dramatically from Caterpillar,

[00:06:28] Speaker 04:
The problem that we have with the board's reasoning here is that it determined that one jaw versus two jaws being movable was just a, quote, design choice that's well known in the art.

[00:06:39] Speaker 04:
The problem is that the record simply doesn't bear that out.

[00:06:43] Speaker 04:
Neither Caterpillar nor any other reference teaches how you could permanently retain the pivot pin between the jaws when having both jaws movable.

[00:06:52] Speaker 04:
Every two movable jaw referenced in the record also mounts the set via the main pivot pin.

[00:06:57] Speaker 04:
To the extent that one versus two jaws is a design choice that's well understood in the art, that is only true for non-quick change devices where the pivot pin has to be used also as a mounting mechanism.

[00:07:11] Speaker 04:
When the sole teaching in the prior art only accomplishes a quick change function by not mounting the pin in that way, we don't see how you could find a person skilled in the art to be, to seem it obvious to do

[00:07:24] Speaker 04:
what those secondary references teach when Caterpillar tries to avoid that feature.

[00:07:30] Speaker 03:
They choose to believe and to credit the expert testimony of Jacobson over Mr. Raymond.

[00:07:40] Speaker 04:
Well, on the operability issues, yes, they did.

[00:07:44] Speaker 04:
We think that was error because Mr. Raymond went through a sincere effort to try to combine those teachings

[00:07:50] Speaker 04:
And the response from Mr. Jacobson was so high level as to be meaningless.

[00:07:55] Speaker 04:
It's the kind of conclusory, Ips-A-Dixit assertions of an expert that are not entitled to any weight.

[00:08:00] Speaker 04:
What Mr. Jacobson says is, in his opinion, these are basic modifications.

[00:08:05] Speaker 02:
So if we disagree with you about Jacobson, you lose, right?

[00:08:08] Speaker 04:
No, no, I don't think so.

[00:08:09] Speaker 04:
I think that's actually... Well, because the threshold issue here is whether the Caterpillar reference is even a proper primary reference, given what it teaches.

[00:08:19] Speaker 04:
and it teaches away from the combination, and that the combination from the board goes contrary to the principle of operation of Caterpillar.

[00:08:27] Speaker 04:
I think before we even get to the secondary references and the combination and the operability issues, there's this threshold question of would a person reading the prior art as a whole, looking at Caterpillar, would a person proceed down the path that the board suggests?

[00:08:43] Speaker 04:
Looking at Caterpillar,

[00:08:45] Speaker 04:
looking at the entirety of what Caterpillar criticizes in the prior art and its solution to overcoming those deficiencies, we submit no person skilled in the art would begin down that path at all.

[00:08:59] Speaker 04:
Regardless of the operability issues that occur later on down the path, once a person skilled in the art supposedly gets over that initial issue, we still think that the primary reference is fatally defective and can't support the obvious misjudgment.

[00:09:15] Speaker 04:
To get back to Judge Wallach's question, I think stating that in a declaration that these modifications are just within the skill level of a person's skill in the art, that's the kind of conclusory and unhelpful assertion that doesn't get to the issue of obviousness.

[00:09:32] Speaker 04:
Obviousness is supposed to be about what a person would have done, and particularly in a field where the level of skill is high such as this, the context really matters.

[00:09:42] Speaker 02:
It's just not true that that's all he said in his declaration.

[00:09:45] Speaker 03:
He disagrees and then he adds a diagram and discusses how he modifies it.

[00:09:57] Speaker 04:
I agree.

[00:09:58] Speaker 04:
We certainly recognize that Mr. Jacobson did undertake an effort to try to redraw what Caterpillar might look like.

[00:10:05] Speaker 04:
That's where we have Mr. Raymond's declaration that conclusively and unrebuttably disproves that that would be... But your problem is that we're not the fact finder.

[00:10:14] Speaker 02:
The board is the fact finder.

[00:10:16] Speaker 02:
They chose Jacobson over Roman.

[00:10:18] Speaker 02:
That's something they're entitled to do.

[00:10:21] Speaker 04:
Well, the conclusory aspect of Mr. Jacob's declaration, if I misspoke, I apologize.

[00:10:26] Speaker 04:
It's not that he didn't articulate some way that he would combine it.

[00:10:30] Speaker 04:
He never articulated any basis why a person fielding the art would have started down that path in the first place.

[00:10:35] Speaker 04:
and would have made these changes at all.

[00:10:37] Speaker 04:
There's nothing about Caterpillar that suggests... Well, he says various points.

[00:10:41] Speaker 03:
It is well known in the art that, for example, it's well known to have two jaws pivotally mounted above a main pivot pin, citing U.S.

[00:10:51] Speaker 03:
patent, and so on.

[00:10:53] Speaker 03:
Yeah, the problem with that... So that's his foundation.

[00:10:56] Speaker 03:
To say it's conclusory, he does have a foundation.

[00:11:00] Speaker 03:
He's an expert.

[00:11:01] Speaker 03:
He lays the foundation for his

[00:11:03] Speaker 03:
expert conclusions, how do you say the board can consider that?

[00:11:09] Speaker 04:
Because if you look at the patents that he was actually relying on, the underlying evidence, all those patents that he's pointing to to suggest that it is just a simple matter of switching one to two jobs and vice versa, he's pointing only to the non-quick change devices where the main pivot pin is still having to be inserted and removed.

[00:11:25] Speaker 04:
There's a very, very critical constraint that's added to the equation by Caterpillar, which says you can't touch that pivot pin, because as soon as you start having to tinker with the pivot pin, you're outside the realm of what Caterpillar specifically wants to achieve.

[00:11:38] Speaker 04:
That's your eight-hour removal and reattachment process versus 15 minutes when you don't have to tinker with the pin.

[00:11:46] Speaker 04:
Yes, Mr. Jacobson says that it would be obvious to do that, but what he's pointing to doesn't support what he is saying.

[00:11:53] Speaker 04:
And otherwise, to simply say that these changes in his mind are, quote, basic, set against a very detailed analysis of why these changes are anything but basic and why they run into serious structural defects at every turn along the way, we don't see how the board can rest its judgment on these very high level of abstraction assertions from Mr. Jacobson that aren't supported by the record when Mr. Raymond's declaration is far more consistent with what the evidence and the prior arts teachings as a whole

[00:12:23] Speaker 04:
are revealing.

[00:12:27] Speaker 00:
We'll save you rebuttal time, Mr. Green.

[00:12:29] Speaker 04:
Thank you.

[00:12:42] Speaker 00:
Mr. Massey.

[00:12:45] Speaker 01:
May it please the court?

[00:12:46] Speaker 01:
My name is Ryan Massey.

[00:12:48] Speaker 01:
I represent the third party requester Genesis Attachments in this appeal.

[00:12:54] Speaker 01:
The Board of Appeals concluded that it would have been obvious to modify caterpillar to include two movable blades as taught by Ogawa.

[00:13:01] Speaker 01:
I intend to talk about the evidence that supports their finding that a rational basis existed as to why to modify caterpillar to have two movable blades and the evidence that supports their finding that it is within the level of ordinary skill in the art to modify caterpillar to have two movable blades.

[00:13:21] Speaker 01:
Before I start, you may find it helpful to reference the equation

[00:13:24] Speaker 01:
that's on page two of the appellee brief.

[00:13:27] Speaker 01:
I believe it's document number 21, and it would actually be page seven at the top as far as the printing goes.

[00:13:40] Speaker 01:
As far as establishing the evidence of a rational basis, the board found not only that Ogawa taught the use of two movable blades

[00:13:49] Speaker 01:
But the board also found that two movable blades can be opened wider than just one.

[00:13:56] Speaker 01:
And you can see that if you have that equation in front of you, the Ogawa figures is in the middle row on the left-hand side.

[00:14:04] Speaker 01:
And you can see that those two blades are opened approximately 180 degrees.

[00:14:10] Speaker 01:
The board also recognized that two movable blades have improved operability.

[00:14:14] Speaker 01:
It's much like we have opposable thumbs.

[00:14:16] Speaker 01:
If you want to grasp something, you can reach out

[00:14:19] Speaker 01:
center the device and bring both your fingers and your thumb towards the device to grasp it.

[00:14:25] Speaker 01:
The board basically recognized you have that improved operability with two moveable blades instead of one.

[00:14:32] Speaker 01:
If you imagine your thumb being fixed and not moveable, it would take a little bit more concentration to pick up an item by just being able to move your fingers and not being able to move your thumb.

[00:14:42] Speaker 00:
So the real question is what in the prior art, what in the references teaches or suggests

[00:14:49] Speaker 00:
making this particular change other than looking and seeing what this patentee did and that it was an improvement.

[00:14:57] Speaker 01:
Well, the device of Caterpillar has a very distinct, very unique mounting system.

[00:15:03] Speaker 01:
It allows for quick removal of the tool set and so with Caterpillar it has just one movable blade and one fixed blade and I don't think that that is in any way

[00:15:14] Speaker 01:
relevant to the quick connect system that Caterpillar is disclosing.

[00:15:19] Speaker 01:
It just happens to be that they implemented their quick connect system on a tool set having one movable blade.

[00:15:26] Speaker 01:
So when one having ordinary skill in the art would look at it and say, boy, that would be nifty if I could use that same quick connect system with two movable blades, I think it would readily appear to a person having ordinary skill in the art that that would be an obvious combination to make.

[00:15:40] Speaker 00:
If your client didn't do it, I mean, this is really

[00:15:43] Speaker 00:
What concerns me in this case is a small difference has been made.

[00:15:47] Speaker 00:
The need, we've been told, has existed in this industry for a while.

[00:15:53] Speaker 00:
The advantage is clear, but until this patentee does it, nobody does it.

[00:15:58] Speaker 00:
So why is it obvious?

[00:16:00] Speaker 01:
Well, we're not talking about the quick connect system.

[00:16:03] Speaker 01:
The quick connect system is really what is the essence of what's now patented, of what's the 489 patent.

[00:16:09] Speaker 01:
The Caterpillar reference

[00:16:12] Speaker 01:
discloses that quick connect system.

[00:16:14] Speaker 01:
I mean, it is actually much quicker to assemble and disassemble than I believe that the patent system would be because the patented system has multiple pins, multiple alignments that have to be made.

[00:16:27] Speaker 01:
So there are clearly benefits to using the Caterpillar Connect system

[00:16:33] Speaker 01:
and adding a second movable blade.

[00:16:36] Speaker 00:
But that's not the accused infringing system.

[00:16:39] Speaker 00:
Your client isn't using the caterpillar system as I understand it.

[00:16:43] Speaker 01:
Our client is not using the caterpillar system and is not using the patented system.

[00:16:47] Speaker 01:
My client is using an automated system.

[00:16:51] Speaker 01:
It actually has automated pins that come out and engage.

[00:16:55] Speaker 01:
It just so happens that they have interpreted the bridge housing in their claims so broadly that

[00:17:01] Speaker 01:
they argue that it would read on my client's device.

[00:17:04] Speaker 01:
My client's device looks nothing like their device, and you can see that from the, I believe it's the 718 patent which is on record.

[00:17:10] Speaker 00:
But most of the matter of claim construction and infringement, that's not before us, right?

[00:17:15] Speaker 01:
Yes.

[00:17:16] Speaker 01:
But here we have a clear teaching in Caterpillar of all the benefits of a Quick Connect system that reads on the device of the patent except for

[00:17:29] Speaker 01:
second movable blade, which has been added during prosecution of this re-examination proceedings.

[00:17:40] Speaker 01:
So moving forward with establishing the rational basis for the modification, the board recognized that two movable blades have the improved operability.

[00:17:50] Speaker 01:
The board noted that the prior art itself clearly demonstrates that there exists a market for tools in which both of the jaws are movable.

[00:17:57] Speaker 01:
In addition,

[00:17:58] Speaker 01:
To Ogawa, the board recognized that the Labountee 493 patent, which is shown in the middle row at the center, has two movable blades.

[00:18:08] Speaker 01:
They also recognized that the Labountee patent, the 569 patent, teaches two movable blades.

[00:18:16] Speaker 01:
The board found that the art itself established that for some applications, it is desirable to have two movable blades.

[00:18:23] Speaker 01:
So in view of the substantial evidence, it is clear that a proper rational basis has been established

[00:18:29] Speaker 01:
which refused the patent owner's argument that the combination is based only upon impermissible hindsight.

[00:18:35] Speaker 01:
With regard to the level of ordinary skill in the art, the board found that the priority of record demonstrates that the level of skill in this art is high.

[00:18:44] Speaker 01:
And I just heard Mr. Breen say the level of skill in this art is high.

[00:18:49] Speaker 01:
He said it here.

[00:18:50] Speaker 01:
In particular, the board found that the bounty, the 493 reference, specifically demonstrates

[00:18:56] Speaker 01:
And I'm quoting, not only the level of skill of one of ordinary skill in the art as to the ability to alter jaws, but also demonstrates that implementing a jaw so that one or both blades are movable is a design choice that is well within the skill of one of ordinary skill.

[00:19:15] Speaker 01:
And you can see in that middle row of figures, and I apologize that they're reproduced so small, but there's a system with two jaws.

[00:19:25] Speaker 01:
In one embodiment of this patent, they show that lower jaw is mounted to a strut that holds that lower jaw in a fixed position.

[00:19:34] Speaker 01:
And they also disclose an alternative embodiment where a hydraulic cylinder can be employed to allow movability of that second jaw.

[00:19:43] Speaker 01:
So there's clearly a teaching there of great skill in the arts, high level of skill in the arts to make modifications like what we proposed in this rejection.

[00:19:54] Speaker 01:
There's also the declaration of Dan Jacobson.

[00:19:59] Speaker 01:
In his declaration, he shows the drawing that's reproduced at the bottom of that equation that I referred you to.

[00:20:05] Speaker 01:
In his proposed modification... His modification drawing.

[00:20:12] Speaker 01:
Yes.

[00:20:12] Speaker 01:
He basically took a drawing that was in the Raymond Declaration, and the Raymond Declaration removed the fixed jaw and left it hanging out in space.

[00:20:24] Speaker 01:
Dan Jacobson looked at it and said, all you would do to modify this is three things.

[00:20:29] Speaker 01:
He said you would add a pivot hole, you would add a connecting arm, and you'd add a hydraulic cylinder.

[00:20:38] Speaker 01:
Now I want to point out, if you look at every other figure on that drawing of that equation, every movable blade has a pivot point, a connecting arm,

[00:20:49] Speaker 01:
in a hydraulic cylinder or it has a linkage connected to a different hydraulic cylinder or the original hydraulic cylinder.

[00:20:56] Speaker 01:
So the modifications that Mr. Jacobson proposed are not anything other than what you would see on any one of these other pieces of prior art where there's a movable jaw.

[00:21:09] Speaker 01:
So the evidence of record clearly establishes that the modification of caterpillar to include two movable blades is clearly within the level of ordinary skill in the art and is not a major reconstruction.

[00:21:20] Speaker 01:
There's clearly discrepancy between the two declarations.

[00:21:26] Speaker 01:
One that says this is a very simple modification.

[00:21:28] Speaker 01:
And I think that that is shown when you look at how he proposed to modify the second movable jaw to employ that in Caterpillar.

[00:21:38] Speaker 01:
He was simply using what was already known in all of the other movable jaw systems.

[00:21:46] Speaker 01:
The patent owner would argue that

[00:21:49] Speaker 01:
None of these efforts and changes would have been obvious to a Fucita, a person having ordinary skill in the art.

[00:21:55] Speaker 01:
And yet, I think that those differences are clearly taught.

[00:21:59] Speaker 01:
And I think here the board obviously looked at both declarations.

[00:22:02] Speaker 01:
They considered them in detail.

[00:22:05] Speaker 01:
I think they weighed more heavily to the convincing evidence of the Jacobson Declaration.

[00:22:12] Speaker 01:
I have two more issues to discuss, and that is that the patent owner argues that Caterpillar teaches away from the modification.

[00:22:19] Speaker 01:
With the device of Caterpillar, what they're looking to do is isolate the pivot pin so that you don't have to disconnect a jaw when you want to disassemble the whole tool set.

[00:22:31] Speaker 01:
I think that's clear.

[00:22:33] Speaker 01:
Caterpillar does not teach anything about or teach away from anything about adding a second jaw.

[00:22:38] Speaker 01:
It simply wants to make sure that you isolate the pivot pin when you disconnect the whole tool set.

[00:22:45] Speaker 01:
So adding a second pivot jaw to that main pivot pin

[00:22:49] Speaker 01:
will not change the principle of operation.

[00:22:52] Speaker 01:
The device doesn't teach away from that at all.

[00:22:56] Speaker 01:
And I guess that gets me to my last point, which is the patent owner argues that the proposed modification changes the principle of operation of Caterpillar.

[00:23:03] Speaker 01:
Again, Caterpillar discloses a quick connect system for mounting a tool set to a piece of construction equipment without requiring removal of the pivot pin.

[00:23:13] Speaker 01:
The modification to include two movable jaws no way affects.

[00:23:17] Speaker 01:
the principle of operation of the Quick Connect system, it only adds another pivoting draw out at the end on the pivot.

[00:23:26] Speaker 00:
Okay.

[00:23:28] Speaker 00:
Thank you, Mr. Massey.

[00:23:36] Speaker 00:
Mr. Breen.

[00:23:37] Speaker 04:
Thank you, Your Honor.

[00:23:39] Speaker 04:
Just a few brief points in rebuttal.

[00:23:41] Speaker 04:
I believe what Mr. Massey just went through repeated the very errors of the Board.

[00:23:44] Speaker 04:
I think all stem from this idea of taking the prior arts teachings at far too high a level of abstraction.

[00:23:51] Speaker 04:
The equation referenced by Mr. Massey in the red brief here I think is a good indication of how disconnected the teachings relied on by the board are from the actual prior arts references as a whole.

[00:24:07] Speaker 04:
Mr. Massey began by talking about the idea of having two movable blades and certain operational advantages that might come from that.

[00:24:14] Speaker 04:
And that may all be well and good, but the issue is, would it have been obvious, starting from Caterpillar, as the board did, to incorporate that feature?

[00:24:23] Speaker 04:
And I don't think any person skilled in the art could read Caterpillar and see how that one jaw being immobilized as a central feature of Caterpillar would then proceed down a path that leads to movable jaws.

[00:24:35] Speaker 04:
Had you, on the other hand, looked at the teachings in the prior art of those two movable jaws, you would also see that they're fundamentally incompatible with Caterpillar because of the way the pin mounts the jaw set.

[00:24:46] Speaker 04:
So just looking at the idea of two movable jaws is not the same as looking at the actual teachings in Caterpillar and the actual teachings in the prior art of record.

[00:24:56] Speaker 04:
As for the level of skill in the art, I certainly agree with Mr. Massey that it is high, and as I mentioned a moment ago, that's exactly why the context in these references matters.

[00:25:04] Speaker 04:
and why the reasoning has to account for the realities and the technological trade-offs and the structural engineering that goes into these very heavy-duty devices.

[00:25:14] Speaker 04:
Mr. Massey mentioned Le Bounty as conclusive proof that using one-jaw versus two movable is a well-understood routine matter in the art, and that is simply not true because Le Bounty includes a feature to change from one to two, but only in the context of a non-quick change device.

[00:25:33] Speaker 04:
There's a major constraint added for Caterpillar and for the 489 patent that it has to be quick change.

[00:25:38] Speaker 04:
It has to avoid tinkering with the pivot pin.

[00:25:41] Speaker 04:
So to say that Labounte teaches this interchangeability from one to two jaws is error.

[00:25:47] Speaker 04:
There's no support for that assertion in the record that those are interchangeable in the broad sense that the board and Genesis would have this court believe.

[00:25:55] Speaker 04:
And again, just returning to the equation of Mr. Massey and Genesis as cream.

[00:26:01] Speaker 04:
KSR and the Graham Factors have a lot of weight given to the scope and content of the prior art and the differences between the prior art and the claimed invention.

[00:26:09] Speaker 04:
It's very important to consider those in their full context to avoid the kind of high level of abstraction reasoning that was employed by the board here.

[00:26:20] Speaker 04:
If we do not require more detailed analysis of the prior art and its teachings as a whole, then we are inviting the kind of conclusory, high-level reasoning that makes it difficult for any invention to be patentable.

[00:26:35] Speaker 00:
Thank you.