[00:00:00] Speaker 04: is 2015-1548, Bamberg v. Dalvey. [00:00:09] Speaker 04: Mr. Holmes, please proceed. [00:00:20] Speaker 02: Good morning, Your Honors. [00:00:22] Speaker 02: My name is Steve Holmes, representing the Appellant Bamberg. [00:00:27] Speaker 02: We have pleased the Court [00:00:28] Speaker 02: What we have before you today is a claim construction issue that arises out of an interference proceeding. [00:00:34] Speaker 02: My primary goal in this argument is to convince you that the claim construction process that the board took was incorrect. [00:00:42] Speaker 02: So at the outset, we agree that the Agilent Spina precedent is the correct precedent to follow. [00:00:49] Speaker 02: Copied claims in an interference are being interpreted in light of the specification that they were copied from. [00:00:55] Speaker 02: And we also agree that, according to Spina, [00:00:57] Speaker 02: that the board interprets those claims according to the broadest reasonable interpretation standard. [00:01:03] Speaker 02: But unfortunately, that's where our agreement with the board's decision ended. [00:01:07] Speaker 02: I'd like to focus on the word reasonable in the broadest reasonable interpretation standard. [00:01:13] Speaker 02: The appellee and oral argument at the board argued that when doing the broadest reasonable interpretation standard, you look to the specification and anything relating to a term within that specification [00:01:26] Speaker 02: could be imported into the claim. [00:01:29] Speaker 02: And that's where we disagree. [00:01:31] Speaker 02: A broadest reasonable interpretation rule doesn't give the PTO permission to import anything that's related to the claimed invention. [00:01:38] Speaker 02: What it does do is it must still be reasonable under general claim construction principles. [00:01:43] Speaker 02: So I'm going to go right to my question. [00:01:47] Speaker 02: How does a broad reasonable interpretation of a copied claim become narrower [00:01:53] Speaker 02: to include a function limitation of melting and mixing, and then a temperature limitation when there was no term or phrase in the copy claims that required those limitations. [00:02:04] Speaker 02: And my answer is that it's because counsel and his argument pushed the board to harmonize the two specifications, both the Bambi specification and the Dalvey specification, by comparing them. [00:02:18] Speaker 02: And then once you start comparing specifications in a case like this, [00:02:23] Speaker 02: The whole exercise kind of unravels and becomes a self-fulfilling prophecy that you're going to find issues or discrepancies between the two specifications that may not match up correctly. [00:02:34] Speaker 02: So properly under Agilent, what the board should have done was divided those into two discrete analysis. [00:02:42] Speaker 02: First, a legal analysis, a claim construction, and then under the broadest reasonable interpretation standard. [00:02:50] Speaker 02: And then once they were construed, a factual determination [00:02:53] Speaker 02: looking to Bamberg afterwards to see whether Bamberg supported that construction. [00:02:58] Speaker 02: The problem I see here was that the board merged those two analysis into one analysis by first looking at both of the specifications. [00:03:11] Speaker 03: So are you saying that we can't look at the Dalvey specification in determining what the scope of the claims are that you copied from Dalvey? [00:03:20] Speaker 02: No, that's exactly what we need to do. [00:03:23] Speaker 02: Bamberg copied Dalvey's claims for the interference. [00:03:26] Speaker 03: So if Dalvey's specification makes clear that its invention requires melting and mixing and doesn't claim anything else, then why isn't that a proper limitation to the claim terms, even under the broadest reasonable interpretation standard? [00:03:41] Speaker 02: Because I would submit to you that that actually narrows the claim, because it inserts a functional limitation into a layer. [00:03:49] Speaker 03: But if that's what they invented. [00:03:50] Speaker 03: That's what they invented. [00:03:52] Speaker 03: Let's hypothetically, I know there may be dispute, but that's what they invented. [00:03:56] Speaker 03: Their claim, their specification, even though their claim language may be broader, their specification makes clear, and under normal claim construction rules, we can look at that, makes clear that the only thing they invented is the thing that requires melting and mixing. [00:04:11] Speaker 03: Why isn't that the broadest reasonable interpretation? [00:04:16] Speaker 02: Because the broadest reasonable interpretation should start with the claims themselves. [00:04:20] Speaker 03: Well, that's why I ask you, though, are we allowed to look at the specification or not? [00:04:24] Speaker 03: Yes. [00:04:25] Speaker 03: Well, if we're allowed to look at the specification and we determine that the specification limits the claims under traditional claim construction principles, then the fact that you could read the claims more broadly in a vacuum doesn't alter the fact that the limited construction is the broadest reasonable construction. [00:04:46] Speaker 02: Well, I would say that when you're looking at a broadest reasonable construction, it somewhat depends on the claim terms that you're looking at. [00:04:58] Speaker 02: And also, if you're looking at it as the invention that... Let me ask this outside the context of interference. [00:05:04] Speaker 03: If we're just looking at claim construction and we have very, very broad claims, I know you think the Dalby claims are very broad, very broad claims, but the specification makes clear that they're not that broad. [00:05:15] Speaker 03: that they've been their own lexicographer, that they define them in more limited terms. [00:05:20] Speaker 03: Under that scenario, we have to use that specification to inform the claim construction, don't we? [00:05:27] Speaker 02: You do, but it doesn't necessarily mean that you have to import those limitations into the claim. [00:05:31] Speaker 04: If they were their own lexicographer, I don't understand why you're fighting to choose this example. [00:05:36] Speaker 04: I mean, it seems unassailable. [00:05:38] Speaker 04: If they were their own lexicographer and expressly defined the term, [00:05:41] Speaker 04: You do have to import those limitations into the claim because they defined the term different from its plain and ordinary meaning. [00:05:48] Speaker 04: That's not your case. [00:05:50] Speaker 04: So I don't know why you're fighting him on such an unassailably correct principle of claim construction. [00:05:56] Speaker 02: OK. [00:05:58] Speaker 02: What I would say, if we want to use the lexicographer example, Dalby did define what her white layer was. [00:06:08] Speaker 02: So I guess I'm looking at it in terms of what's being defined. [00:06:12] Speaker 02: Are we defining the invention, or are we defining the white layer? [00:06:16] Speaker 04: Because every case I've read, going back to the principle, says broadest reasonable construction consistent with the specification. [00:06:22] Speaker 04: Or sometimes it says in light of the specification. [00:06:25] Speaker 04: Isn't that correct? [00:06:26] Speaker 04: Isn't that the standard? [00:06:27] Speaker 04: It's not broadest reasonable construction in a vacuum, right? [00:06:30] Speaker 04: It's broadest reasonable construction consistent with the specification. [00:06:34] Speaker 02: Consistent with the specification. [00:06:35] Speaker 02: Right. [00:06:37] Speaker 02: OK. [00:06:37] Speaker 02: I do want to point out that in the lexicographer, Delby did define what that was. [00:06:44] Speaker 02: Now, I understand that there is a description in the specification that says that the layers melt and mix. [00:06:52] Speaker 02: She doesn't use language in the specification that clearly disclaims that. [00:06:56] Speaker 02: She used it in her argument here that said it has to melt and mix. [00:07:01] Speaker 02: If you looked at the specification, would somebody reasonably skilled in the art interpret that? [00:07:07] Speaker 02: That remains a question. [00:07:08] Speaker 04: Is your argument it doesn't rise to the level of disclaimer because that's a very high level of proof that's necessary? [00:07:15] Speaker 04: Is that your argument? [00:07:16] Speaker 02: If you look just at the specification, I don't think it rises to a disclaimer. [00:07:20] Speaker 02: I think it describes an embodiment. [00:07:26] Speaker 02: I just want to quote from one section in the Dalby spec where she did define what it was. [00:07:31] Speaker 02: As used herein, the term white layer refers to a layer on the transfer sheet. [00:07:36] Speaker 02: The white layer imparts a white background on a dark substrate. [00:07:40] Speaker 02: And I think that's where we need to stay with the claim construction, is that the white layer interpreted from a broader standpoint just means that it's a white layer. [00:07:51] Speaker 02: You don't need to interpret in how that layer is formed, how it functions once it's applied to the t-shirt. [00:07:58] Speaker 02: So I think we've gone too far in looking at what the invention really was. [00:08:03] Speaker 02: If the invention is first defined in the claims, [00:08:06] Speaker 02: It's a white layer. [00:08:08] Speaker 02: I don't think we need to go much beyond white. [00:08:12] Speaker 00: If your claims were properly construed as being a white layer that's both fusible and non-fusible below 220 degrees, don't you still have a written description problem? [00:08:25] Speaker 02: I don't think so. [00:08:26] Speaker 00: And I think that's another. [00:08:27] Speaker 00: Where your specification specifically says that your white layer must be fusible [00:08:34] Speaker 00: not be fusible under 220 degrees. [00:08:37] Speaker 02: Okay, I would argue that Bamberg's specification, while it describes a preferred embodiment that does not melt, there's varying language in the specification where he says the white layer... What about a page A 1391, line 17 through 18, [00:08:58] Speaker 00: which says suitable pigments are only those which do not melt at ironing-on temperatures. [00:09:07] Speaker 02: Yes, so those are the pigments that were used within the white layer, and those tend to be dispersed within the polymer that might melt. [00:09:15] Speaker 00: But it says they only, which do not melt. [00:09:17] Speaker 00: So your view is that because that's just the pigments within the polymer, it means the white layer can melt? [00:09:23] Speaker 02: Can you explain that? [00:09:25] Speaker 02: It means that the pigments are inorganic, and they really don't have a melting. [00:09:30] Speaker 02: They do, but it's a very high temperature. [00:09:33] Speaker 02: I think we can grab some other language in there as well from that same page. [00:09:39] Speaker 02: The elastic plastics must not melt at ironing temperatures in order to provide with the adhesive layer an undesired mixture with impaired properties. [00:09:48] Speaker 02: So to me, that says, well, it says it must melt. [00:09:51] Speaker 02: to provide it so that it doesn't provide an undesired mixture. [00:09:56] Speaker 02: Now, undesired doesn't mean it won't work. [00:09:59] Speaker 02: It doesn't mean that it's being disclaimed. [00:10:02] Speaker 02: It just means that it's an undesirable embodiment to me. [00:10:05] Speaker 02: So I don't think it's a disclaimer within his specification that he describes these specific embodiments that don't melt. [00:10:14] Speaker 00: Well, just to be clear, it's not an issue of disclaimer. [00:10:17] Speaker 00: It's an issue of possession, right? [00:10:18] Speaker 00: Correct. [00:10:19] Speaker 00: Okay, and that's for substantial evidence. [00:10:22] Speaker 00: It's a question of fact. [00:10:23] Speaker 02: Right. [00:10:24] Speaker 02: So if we look at the issue of possession, whether he possessed the concept of a melting layer, I'd say that he did possess that. [00:10:32] Speaker 02: And I think the board, from a factual standpoint, may have overlooked some of the evidence that was of record. [00:10:38] Speaker 02: So if you look at the specific elements that we quoted or those specific sections that talk about an undesired mixture, [00:10:49] Speaker 02: If he said it was undesired, he obviously had an embodiment that did melt and mix and he didn't like the way that it looked. [00:10:58] Speaker 02: So he went on and said, I don't want this layer. [00:11:02] Speaker 02: This layer probably shouldn't mix. [00:11:03] Speaker 02: I'm going to develop something a little further. [00:11:05] Speaker 02: But it doesn't mean that he didn't possess the idea and he didn't possess that whole range. [00:11:10] Speaker 02: In fact, I'm going to pull from his testimony. [00:11:12] Speaker 04: Do you have to possess the embodiment or do you have to possess an operable [00:11:18] Speaker 04: version of the embodiment. [00:11:20] Speaker 04: And I guess what I mean by that is if you possess it but don't appreciate how it may work and work properly and work well, then I'm not sure you fully possess it. [00:11:31] Speaker 04: That's my question. [00:11:36] Speaker 02: The possession of an embodiment, if it was an undesired mixture, he had an understanding that it did work. [00:11:44] Speaker 02: I would submit that in terms of technically. [00:11:47] Speaker 04: That it did work. [00:11:48] Speaker 04: I don't know. [00:11:49] Speaker 04: I mean, if somebody's undesirable, that doesn't make them acceptable, right? [00:11:53] Speaker 02: You go out on a blind date. [00:11:54] Speaker 04: She was undesirable. [00:11:55] Speaker 04: Does that really mean you want to go on a second date with her? [00:11:57] Speaker 04: I don't think so. [00:11:59] Speaker 04: I'm pretty sure you've ruled her out. [00:12:02] Speaker 02: But to me, that speaks to an understanding of what it is that you're defining as undesirable. [00:12:12] Speaker 00: What about the Tronzo case, which is analogous to this situation, where [00:12:17] Speaker 00: Something was described in the patent as being undesirable. [00:12:22] Speaker 00: Certain shapes were undesirable. [00:12:24] Speaker 00: And then the preferred embodiment was described as having a different shape. [00:12:29] Speaker 00: And so there wasn't written description support for those other shapes that were described as being undesirable. [00:12:34] Speaker 00: Why doesn't that apply here? [00:12:35] Speaker 02: Correct. [00:12:36] Speaker 02: Because the difference is that Bamberg provided an explanation as to the whole range of temperatures and selected the higher temperatures as what he preferred. [00:12:47] Speaker 02: In the Toronto case, I believe they specifically listed some shapes, but then didn't discuss the other ones. [00:12:56] Speaker 02: Not that they didn't discuss them, they just completely disclaimed them, but didn't say that there was any kind of intermediate that they don't work. [00:13:03] Speaker 00: Well, they didn't say they didn't work. [00:13:04] Speaker 00: They said they were not desirable and that the preferred embodiment used a different shape. [00:13:12] Speaker 02: OK. [00:13:13] Speaker 04: You're into your rebuttal time, so why don't you answer Judge Stoll's question, and then maybe we'll save the rest. [00:13:19] Speaker 02: OK. [00:13:19] Speaker 02: And then I'd like to just pull one thing from Bamberg's specification. [00:13:23] Speaker 02: In the Tronzo case, I think the difference with this case is that Bamberg had an understanding and discussed the differences within his specification that would lead somebody of reasonable skill in the art to say, you could have a layer that melted. [00:13:42] Speaker 02: But it may not be as good. [00:13:44] Speaker 02: And I'm going to quote from Bamberg's deposition. [00:13:49] Speaker 02: We came to an understanding that the clarity and resolution are decreased where the white background layer is permitted to melt and mix. [00:13:57] Speaker 02: Accordingly, we developed a white layer that did not melt at conventional ironing temperatures. [00:14:02] Speaker 02: To me, that says that he tested the whole spectrum of it, and he understood [00:14:07] Speaker 02: How it functioned. [00:14:08] Speaker 00: Is there something else in the specification you would want to point to, or just the page 81390? [00:14:12] Speaker 00: I understand that's his deposition, but what about the specification? [00:14:18] Speaker 02: In the specification, I will find those sites for you. [00:14:23] Speaker 02: And if I could quote them in my rebuttal, that would be great. [00:14:26] Speaker 04: We'll restore two minutes of rebuttal time, Mr. Holmes. [00:14:30] Speaker 04: Well, you've got to tell me how to say your name. [00:14:31] Speaker 04: A lot of consonants. [00:14:33] Speaker 01: Padmanabhan. [00:14:34] Speaker 04: Again? [00:14:36] Speaker 04: Padmanabhan. [00:14:37] Speaker 04: Okay, please proceed. [00:14:38] Speaker 04: So certainly if the specification had just disclosed three embodiments but said one was strongly preferred, you wouldn't be here arguing [00:15:05] Speaker 04: that the other two that weren't described as strongly preferred weren't disclosed, right? [00:15:14] Speaker 04: If a specification disclosed three embodiments, and we're trying to decide if the inventor satisfied written description, and if the specification said one of those three embodiments was strongly preferred, it says nothing about the level of preference for the other two embodiments. [00:15:30] Speaker 04: You would not be here arguing to me that the inventor didn't possess the other two if they were both completely [00:15:35] Speaker 04: disclosed just because he preferred and indicated a preference for one of the three, right? [00:15:39] Speaker 01: That is correct, Your Honor. [00:15:40] Speaker 04: So in this case, because he said one is undesirable, he didn't just express a preference for one over the others, but actually said one embodiment is undesirable. [00:15:50] Speaker 04: How does that make it different? [00:15:52] Speaker 01: Your Honor, it's a little stronger than that. [00:15:54] Speaker 01: So in this case, if you look at Mr. Bamberg's specification, it's not just once. [00:16:00] Speaker 01: He repeatedly tells you in every embodiment that you look at that [00:16:04] Speaker 01: The one thing that his white layer cannot do is melt or be fusible under 220 degrees Celsius. [00:16:11] Speaker 04: Show me the best site in the patent for supporting that kind of what you just said. [00:16:15] Speaker 01: If you start at page 1390, A1390, and if you go towards the bottom, there's a sentence. [00:16:29] Speaker 01: I'm sorry. [00:16:36] Speaker 01: There's a sentence that reads, about five sentences up that reads, the white background layer which is found directly on the adhesive layer according to the present invention comprises or is composed of a permanently elastic plastics which are non-fusible at ironing temperatures in parentheses i.e. [00:16:54] Speaker 01: up to 220 degrees C. And then he goes on to what Mr. Holmes and you discussed about the fillers and the pigments. [00:17:03] Speaker 01: That's one [00:17:07] Speaker 01: That's one area where they specifically talk about the white background layer. [00:17:11] Speaker 03: If you, again... Sorry, I don't mean to interrupt this, but I'm a little confused about if they're claiming this isn't the invention, it has to be this stuff, but they know about another way to do it that they're... [00:17:27] Speaker 03: doesn't work in their view, is that an embodiment of the invention or is it just not the invention and not in the specification? [00:17:36] Speaker 01: It's not the invention. [00:17:37] Speaker 01: It's not the specification. [00:17:38] Speaker 01: It's exactly what Judge Stoll said about the Tronzo case, because I was going to say the same thing, which is at that point, it's them, the inventor telling you and giving reasonable notice to people skilled in the art that that is not what I'm covering in my spec. [00:17:53] Speaker 01: In fact, Mr. Bamberg in their... [00:17:55] Speaker 03: the inventor may know about that way of doing things, so may be in possession of it in some theoretical sense. [00:18:02] Speaker 01: In some theoretical sense, because the rule on written description is you're looking at the four corners of the patent to determine what it's conveying to one of skill in the art, or reasonably conveying to one of skill in the art. [00:18:13] Speaker 01: And in this case, when you read the Bamberg specification, what it conveys to a person of ordinary skill in the art is the one thing Mr. Bamberg does not possess is an iron-on where the white layer [00:18:25] Speaker 01: is fusible under, below 220 degrees C. And so whether Mr. Bamberg knew about it, whether he didn't know about it, I'm not sure, but whatever he did know, what he conveyed in his patent application was that that's certainly not his invention. [00:18:44] Speaker 01: If you want a couple others, I don't know if you want more sites than the 1390, but you can also look, an easy place to look is 1400 and then also the claims in 1404. [00:18:58] Speaker 00: What's your response about the pigments? [00:19:01] Speaker 00: I had asked about the sentence on 1391 saying, suitable pigments are only those which do not melt at ironing-on temperatures. [00:19:10] Speaker 00: And I was told that, well, that's just the pigments, not the layer. [00:19:14] Speaker 00: How do you respond to that? [00:19:16] Speaker 01: Your Honor, I think that's too fine a distinction made by Bamberg. [00:19:21] Speaker 01: The layer itself contains both what he's calling the elastic plastic and the pigment. [00:19:29] Speaker 01: that layer will have both in it. [00:19:31] Speaker 01: And then so that's why they say it's filled with the pigment. [00:19:34] Speaker 01: And so it's that layer that's not melting. [00:19:36] Speaker 01: And what Bamberg is making clear is neither the plastic nor the pigment melts at temperatures below 220 degrees. [00:19:45] Speaker 00: Are you also relying on the statement at the top of A1391 that says the elastic plastics must not melt at ironing temperatures in order to not? [00:19:54] Speaker 01: I'm sorry. [00:19:54] Speaker 01: Yes. [00:19:54] Speaker 01: Yes, I am. [00:19:56] Speaker 01: And you can see it again. [00:19:57] Speaker 01: in the next two paragraphs down where they're talking about the suitable pigments. [00:20:03] Speaker 01: If you go to the second sentence there, they say the filled white layer where the polymers contained therein, which is the elastic plastic respectively, e.g. [00:20:11] Speaker 01: the polyurethane, must not melt and even explains why. [00:20:16] Speaker 01: But again, and there it's not even at ironing temperatures. [00:20:18] Speaker 01: He's just saying it must not melt. [00:20:21] Speaker 01: Mr. Bamberg, throughout his specification, very consistently [00:20:25] Speaker 01: makes clear that he did not possess that embodiment. [00:20:31] Speaker 01: Now, there's a fundamental, Bamberg's premise for their argument is fundamentally wrong. [00:20:39] Speaker 01: If you look at the board's order, you see that they very faithfully followed the Agilent case. [00:20:46] Speaker 01: And what they did, and you can even look at the board's statements, the board specifically agrees with Bamberg [00:20:53] Speaker 01: in saying they do not include and should not and the claim should not be construed to include a melting temperature limitation and they say again in page 11 of the board's order they say the two Bamberg applications do not contain any claim language that includes or should be construed to include a melt temperature range and then they go on to tell you what the scope of the claims are very consistent with Agilent and they point out exactly what [00:21:22] Speaker 01: Dalvey discloses, because that's what Agilent asked you to do. [00:21:25] Speaker 01: And what they say is, Dalvey discloses embodiments where that white layer can be fusible or non-fusible at temperatures up to 220 degrees. [00:21:36] Speaker 01: And that's the exact same analysis that the McMillan case did in following Agilent. [00:21:42] Speaker 01: They then separately then see, does Bamberg, who copied the claims, did they have possession of that invention [00:21:50] Speaker 01: is exactly the next step that's followed by the case law, both in McMullin and it's the analysis that Agilent asked the board to do. [00:22:01] Speaker 01: And that's exactly what happened here for the board to reach its conclusion. [00:22:05] Speaker 01: The board did not read any functional limitations. [00:22:08] Speaker 01: All the board did simply was to construe the claims as written, then look at the spec exactly as they did in McMullin, which is on all fours of this case. [00:22:18] Speaker 01: And if you look at the McMullin case, [00:22:20] Speaker 01: You'll see that in that case, McMullen copied the claims from Carroll. [00:22:26] Speaker 01: They then looked at the claim language there. [00:22:28] Speaker 01: The claim language there is outward angle or outward angulation. [00:22:32] Speaker 01: And what they did was they looked at the claim language and they said, OK, let's see what Carroll discloses about that. [00:22:38] Speaker 01: And he had a wide range of angles for that. [00:22:41] Speaker 01: Then they look at the McMullen spec and say, what did you disclose for that there? [00:22:45] Speaker 01: And they find out that McMullen limited it to no more than 15 degrees. [00:22:50] Speaker 01: And it's the same here. [00:22:52] Speaker 01: They look at the white layer, and then they look at the white layer language, and they say, OK, it's any white layer, because I've told you it can be fusible or not fusible. [00:22:59] Speaker 01: And then they go back, and they say, what did Dalby disclose? [00:23:03] Speaker 01: And did Bamberg disclose the same scope? [00:23:06] Speaker 01: And in that same way, they decide, just as in McMullen, that there was not written description support for Bamberg. [00:23:12] Speaker 00: Do all of the claims at issue, I guess that's all the copied claims, require a white layer? [00:23:18] Speaker 01: Yeah, I'm sorry, Your Honor. [00:23:19] Speaker 01: And I should clarify that. [00:23:21] Speaker 01: So the parties in this case, when we were briefing in front of the board, used the term white layer as a shorthand for all claim limitations that refer to a portion or a layer that has a white or luminescent pigment. [00:23:36] Speaker 01: And so all the claims, every claim has some version of that claim language that we're calling a white layer. [00:23:42] Speaker 01: So the answer is yes, that every claim has a white layer, but it's not the specific term white layer. [00:23:46] Speaker 01: It's any language that [00:23:48] Speaker 01: fairly red would relate to a layer or a portion of the iron-on that goes to being a white or luminescent pigment. [00:24:03] Speaker 01: The last point I'd make on clean construction is if you look at the board's order and their final conclusion that Dalby actually has an invention where it can use any suitable white layer. [00:24:15] Speaker 01: It's contrary to Bamberg's argument now that the court, or the board, somehow limited the claims. [00:24:22] Speaker 01: Because that would be contrary to their finding that any suitable white layer would be used in the Dalby invention. [00:24:31] Speaker 01: Lastly, I'll just mention briefly, the board also did a thorough job in analyzing the Bamberg spec to determine if there was written description. [00:24:41] Speaker 01: They found there was substantial evidence. [00:24:43] Speaker 01: The board was very careful to look [00:24:45] Speaker 01: the Bamberg specification, the records at the USPTO, expert testimony as well as Mr. Bamberg's own testimony. [00:24:53] Speaker 01: And there's substantial evidence to support it. [00:24:55] Speaker 01: We went through some of the sites in the Bamberg specification. [00:24:58] Speaker 01: You can also look at the statements made by the USPTO independently, where the USPTO, Mr. Bamberg tried to get a claim allowed where he asked for a white layer with a softening point below 220 degrees. [00:25:14] Speaker 01: And the USPTO independently said, you can't get that claim because you don't have written description support for it, which is consistent with the board's finding. [00:25:21] Speaker 01: And the board acknowledged that. [00:25:22] Speaker 01: And Mr. Bamberg himself in his testimony confirmed that the invention that he had is not a white layer that melts below 220 degrees. [00:25:31] Speaker 01: There's no other questions. [00:25:32] Speaker 01: I have nothing else. [00:25:34] Speaker 04: Thank you. [00:25:35] Speaker 04: Mr. Holmes, we'll give you two minutes of rebuttal time. [00:25:37] Speaker 04: Please proceed. [00:25:40] Speaker ?: Yes. [00:25:46] Speaker 02: Thank you, Your Honor. [00:25:48] Speaker 02: Four quick points, if I can fit them into my two minutes. [00:25:54] Speaker 02: Judge Stoll had asked about some references in the Bamburg specification where we can point to that. [00:26:00] Speaker 02: So also on 1391, we see a paragraph, 15 lines down, starting with preferred elastic plastics for the white background layer selected from the group comprising [00:26:14] Speaker 02: polyurethanes, polyacrylates, et cetera, in that he does not limit those to plastics that don't melt. [00:26:22] Speaker 02: Polyurethanes melt over a wide range of temperatures. [00:26:25] Speaker 02: I'm going to move on quickly to the council's discussion of McMullen. [00:26:34] Speaker 02: McMullen we distinguished in the briefs. [00:26:37] Speaker 02: I'm just going to cover it very quickly. [00:26:40] Speaker 02: It was reasonable for the court to interpret the angle in McMullen. [00:26:43] Speaker 02: because the word angle was in the claim. [00:26:46] Speaker 02: So when you interpret the construction has to start with the claims. [00:26:49] Speaker 02: It has to be something that you're looking to clarify when you look to the specification. [00:26:55] Speaker 02: So in the claim that was copied in McMullen, the word angle was there. [00:26:58] Speaker 02: So I thought it was fair for the board to look to the Carroll specification to see what that claimed range was. [00:27:07] Speaker 02: And then if you look to the McMullen specification, they didn't claim the same range. [00:27:10] Speaker 02: So I think that's distinguishable here. [00:27:12] Speaker 02: Because in the copy claims that we have in this application, there is no term for the board to go look to the specification to define a function of how the white layer melts. [00:27:28] Speaker 02: If you look to what that term's supposed to mean, it's enough pigment, white means enough pigment for it to provide an opaque background. [00:27:36] Speaker 02: Or, as a Rohn lexicographer, that it provides a white background. [00:27:41] Speaker 02: And that's directly from her beginning portion of her specification. [00:27:47] Speaker 02: I think that is my time. [00:27:51] Speaker 04: Thank you, Mr. Holmes. [00:27:52] Speaker 04: The case is taken under submission. [00:27:53] Speaker 04: I thank both counsel.