[00:00:01] Speaker 03:
Thank you, Your Honor.

[00:00:09] Speaker 01:
May it please the court.

[00:00:23] Speaker 01:
We'd like to reserve five minutes for rebuttal.

[00:00:26] Speaker 01:
I thought, again, just by talking about the primary reference that issued here, the Japanese 910 patent and what it is.

[00:00:35] Speaker 01:
To do so, I thought just a real brief reference to the 503 patent.

[00:00:39] Speaker 01:
It's a cable that has twisted pair transmission media.

[00:00:43] Speaker 01:
So the transmission media are the twisted pairs and there's a separator that holds them apart.

[00:00:49] Speaker 01:
The Japanese patent is actually something different than that.

[00:00:54] Speaker 01:
It is a quad.

[00:00:56] Speaker 01:
And so a twisted pair, you find it like in the telephone lines in a home, two twisted wires going like this.

[00:01:02] Speaker 01:
A twisted quad is essentially the same thing.

[00:01:05] Speaker 01:
It's also a transmission media, except you have four twisted together.

[00:01:09] Speaker 01:
That's what the Japanese patent's about.

[00:01:10] Speaker 01:
It's not about putting these multiple transmission media into a cable.

[00:01:14] Speaker 01:
It's about the quad.

[00:01:16] Speaker 01:
And what the Japanese patent does is it references an alignment problem in the prior art.

[00:01:23] Speaker 01:
So in the prior art,

[00:01:24] Speaker 01:
You could have individually insulated quads twisted together.

[00:01:28] Speaker 01:
Or you could have like a center insulator and you put the wires on the edges.

[00:01:32] Speaker 01:
And the problem is, if it's not perfectly at the corners, you have electromagnetic interference.

[00:01:38] Speaker 01:
So they solved that alignment problem by putting just little bitty notches in the center core for the wire to sit in.

[00:01:46] Speaker 01:
And that's what they do to solve it.

[00:01:49] Speaker 01:
So what is the rejection?

[00:01:51] Speaker 04:
Just so I understand, so the four wires go into the four corner pockets on the central core.

[00:02:03] Speaker 04:
Correct, you're right.

[00:02:04] Speaker 04:
And then it goes into a twisting device.

[00:02:08] Speaker 04:
And the twisting device, I guess in the Japanese patent, constantly changes directions, like alternating current or something.

[00:02:16] Speaker 04:
So when that twisting occurs, there is the core kind of at the center, and then there's the four wires that are coming, fitting into the slots for the core.

[00:02:30] Speaker 04:
And something has to prevent, I assume, those four wires from just

[00:02:35] Speaker 04:
circling about each other, back up.

[00:02:40] Speaker 04:
So is there a plate at the entrance to the twister?

[00:02:44] Speaker 01:
Not exactly.

[00:02:45] Speaker 01:
So the way the twisters work, Your Honor, and I believe this is in Mr. Clark's declaration, they squeeze it.

[00:02:50] Speaker 01:
So if you think about it as kind of like sucking spaghetti in, it really doesn't matter where they are because they're in the pockets, it's squeezed together, they'll go in.

[00:02:58] Speaker 01:
And what Mr. Clark also says is because you're wrapping and unwrapping, you don't get the same

[00:03:02] Speaker 04:
I'm just trying to visualize.

[00:03:05] Speaker 04:
We have these four wires before they hug the core.

[00:03:11] Speaker 04:
And we have something in the twister that is turning this whole thing.

[00:03:15] Speaker 04:
So how is it that it is not turning the four wires, rotating all the way around like this, before they hit the core?

[00:03:28] Speaker 04:
There must be a plate or something holding them.

[00:03:31] Speaker 01:
There's the the buncher itself.

[00:03:34] Speaker 01:
It holds everything together.

[00:03:35] Speaker 04:
So why isn't it obvious that because there is going to be that inherent force from the twisting to basically do as much as possible to keep the alignment as early as possible?

[00:03:53] Speaker 01:
A few things, Your Honor.

[00:03:54] Speaker 01:
There's no suggestion that you need to do it.

[00:03:57] Speaker 01:
I mean, it's not described in the reference, and it's not, I mean, it's easy to come back and say, should we address it?

[00:04:04] Speaker 01:
But it's not described in the reference, nor is it described anywhere else in any prior art, or I'm sure it would be in front of first the Board and now Your Honors.

[00:04:14] Speaker 01:
What is happening here is you've got it, it's twisting back and forth, so it's not like going round and round.

[00:04:19] Speaker 01:
So you grab it.

[00:04:20] Speaker 04:
And by the way, is helical twisting just unidirectional?

[00:04:24] Speaker 04:
Is that all it is?

[00:04:26] Speaker 04:
Is it either the S or the Z, or is it something different from either the S or the Z?

[00:04:29] Speaker 01:
No, it's basically like a big thing that grabs it and goes back and forth like this.

[00:04:33] Speaker 04:
That's the SC one?

[00:04:34] Speaker 01:
That's the SC.

[00:04:35] Speaker 04:
I meant the helical one.

[00:04:36] Speaker 01:
The helical would keep going.

[00:04:38] Speaker 01:
That's not Japanese 910.

[00:04:40] Speaker 01:
Japanese 910 is SC.

[00:04:41] Speaker 01:
But a heel pull would just keep going in the same direction.

[00:04:44] Speaker 01:
But even then, it's not clear that you would need to do anything.

[00:04:47] Speaker 01:
You would need to do this to do back twisting.

[00:04:49] Speaker 01:
Now, there were things that were done.

[00:04:50] Speaker 01:
I mean, the Japanese 910 pattern talks about something about back stranding as another way to do it, where you would actually kind of pre-cook in this back twist.

[00:05:00] Speaker 01:
That would be a different way to do it.

[00:05:02] Speaker 01:
What's not shown in the prior art is what's in the pattern, which is having this die in this location to prevent the back twist.

[00:05:10] Speaker 01:
So in order, and again, all the Japanese 910 patent says is, there's this alignment issue, we solve it not by putting a plate in to prevent back twist, we solve alignment just by putting these little notches in.

[00:05:22] Speaker 00:
Well, so what?

[00:05:23] Speaker 00:
I mean, it does do it, right?

[00:05:26] Speaker 01:
No, I don't think it does.

[00:05:27] Speaker 01:
I mean, all this is described as a whole.

[00:05:28] Speaker 01:
The board actually found it's not described preventing it.

[00:05:31] Speaker 00:
Well, I think the board found it as a matter of fact that the Japanese patent does prevent

[00:05:38] Speaker 01:
No, I believe that the board found that it doesn't describe that, but it would be obvious to have that, was the board's finding.

[00:05:44] Speaker 01:
And to get there, what the board had to do, as they said first, the Japanese 910 patent says, we're solving this by putting the grooves in.

[00:05:53] Speaker 01:
And the board says, OK, but alignment is still a problem, notwithstanding that the only solution described is putting the grooves in, nothing more.

[00:06:01] Speaker 01:
So that's the first leap.

[00:06:02] Speaker 01:
The second leap is, OK, and we need to address this alignment problem

[00:06:06] Speaker 01:
by stopping the centerpiece from twisting.

[00:06:08] Speaker 01:
And to your honor's point, let's suppose you've got wires coming in in the center one.

[00:06:13] Speaker 01:
If this is twisting like this, it's going to pull the wires over too.

[00:06:17] Speaker 01:
Right?

[00:06:17] Speaker 01:
So why would you need to actually do anything?

[00:06:19] Speaker 01:
Maybe it's even harmful to do that.

[00:06:21] Speaker 04:
We're getting to the obvious because... I guess what I was thinking is the plate all by itself, by having four holes at the corners, is preventing the four wires from spinning around... Oh, yes, Your Honor!

[00:06:38] Speaker 04:
But that doesn't take care of the spinning of the core.

[00:06:41] Speaker 04:
For the spinning of the core, you need the hole in the plate to hug that core to prevent it from turning on its own axis.

[00:06:51] Speaker 01:
Yeah, that wouldn't necessarily be the case, Your Honor, because first of all, because these are being held, you don't know how much twist is happening relative of any of these between the thing that's doing the twisting and the plate that's in front of it.

[00:07:06] Speaker 01:
So you could actually be doing harm by preventing it from moving to where it would be in alignment.

[00:07:12] Speaker 01:
There's no way to know.

[00:07:13] Speaker 01:
This is not simple stuff.

[00:07:14] Speaker 01:
And I don't know about the Japanese patents in 1982, but the time of the invention,

[00:07:18] Speaker 01:
These things are moving really fast.

[00:07:20] Speaker 01:
That's why this invention came about.

[00:07:22] Speaker 00:
So why is there a lack of substantial evidence for the board's decision on claims one to four?

[00:07:29] Speaker 01:
So there's three areas that there is no substantial evidence.

[00:07:34] Speaker 01:
First, the alignment is still a problem.

[00:07:36] Speaker 01:
I mean there's nothing in the reference that says that and were the court to consider Mr. Baxter's declaration.

[00:07:42] Speaker 01:
He actually doesn't explain that either as to why that would be the case.

[00:07:45] Speaker 01:
The second would be

[00:07:46] Speaker 01:
Even if there were an alignment problem, it's best- What did Clark say about that?

[00:07:50] Speaker 01:
I'm sorry?

[00:07:50] Speaker 01:
What did Clark say about that?

[00:07:53] Speaker 01:
I believe he said that it's already solved with the notches, and there's no reason to do something further.

[00:08:01] Speaker 01:
And by the way, Mr. Clark was unimpeached, at least by testimony.

[00:08:05] Speaker 01:
He wasn't opposed.

[00:08:09] Speaker 01:
The second piece is, let's assume alignment is still a problem.

[00:08:12] Speaker 01:
You would need to address that by preventing twisting.

[00:08:16] Speaker 01:
even though there's not a description in the reference or any other piece of prior art that says you need to prevent twisting of that core member.

[00:08:23] Speaker 01:
The third step is if you're going to have to address twisting of that core member, you should do it not the way it was done in the prior art, back stranding or whatever.

[00:08:33] Speaker 01:
You should do it in the way that the patent does it by holding the core firm and you should do it in the location that the patent calls for it to be done rather than somewhere else.

[00:08:44] Speaker 01:
Without Mr. Baxter, there's nothing.

[00:08:45] Speaker 01:
With Mr. Baxter, there's still nothing, because he doesn't explain it.

[00:08:48] Speaker 01:
And Mr. Clark goes on to address why you actually wouldn't do this.

[00:08:55] Speaker 01:
He says the SC stranding already provides a mechanism to address it.

[00:08:58] Speaker 01:
He says there's this issue with deformation, which is really remarkable.

[00:09:02] Speaker 01:
Because what Mr. Clark said was, you'd deform this thing if you tried to hold it in place there.

[00:09:08] Speaker 01:
What Mr. Baxter said in response is, it's just the same as the patent.

[00:09:12] Speaker 01:
Now, think about that, Your Honor.

[00:09:13] Speaker 01:
The patent is like this.

[00:09:14] Speaker 01:
You're holding this.

[00:09:15] Speaker 01:
So it's like holding the four corners of a cross.

[00:09:18] Speaker 01:
You can get a good grip on that, and it's not going to move.

[00:09:22] Speaker 01:
Think about these little nubbins.

[00:09:25] Speaker 01:
It's like trying to hold the dimples of a golf ball, right?

[00:09:29] Speaker 01:
You just can't get a good grip on it because it's just these little dimples in it.

[00:09:33] Speaker 01:
And Mr. Baxter says it's the same thing.

[00:09:35] Speaker 00:
It's not credible, which kind of leads me to the... Well, that's the word.

[00:09:39] Speaker 00:
That's the problem for you.

[00:09:41] Speaker 00:
Credible.

[00:09:41] Speaker 01:
Well, it's not substantial evidence.

[00:09:44] Speaker 00:
It's not credible.

[00:09:45] Speaker 00:
You want the board to disbelieve him.

[00:09:47] Speaker 01:
I would say, well, actually, I would like the board not to consider the declaration, because I'd just like to summarize what happened.

[00:09:52] Speaker 00:
That's a different point.

[00:09:55] Speaker 00:
Yes.

[00:09:55] Speaker 00:
But in terms of what the board credits, that's hard for us to set that aside, right?

[00:10:01] Speaker 01:
Hard, but not impossible, Your Honor.

[00:10:03] Speaker 01:
It has to make sense, I would respectfully submit.

[00:10:05] Speaker 01:
Or if Your Honor simply wants to say, it has to be fully explained is another way.

[00:10:11] Speaker 01:
But with respect to Mr. Baxter, and this is one of the things that strikes me as fundamentally unfair about what happened in this case, we have a petition that made none of these leaps that I just described.

[00:10:22] Speaker 01:
None of the alignment's still a problem, none of the need to address by stopping twisting, none of wouldn't use the prior art, you'd use what's in the patent and set, none of that.

[00:10:30] Speaker 01:
And then we get no declaration from Mr. Baxter.

[00:10:33] Speaker 00:
But surely the statutory procedure and the procedure provided in the regulations contemplates that evidence is going to be developed in the course of this process, that not everything has to be in the initial petition, right?

[00:10:46] Speaker 01:
I agree completely, Your Honor, but you have to have something there.

[00:10:49] Speaker 01:
You have to have fair notice that puts Bellman, my client, on notice of what they need to put in their opposition.

[00:10:56] Speaker 03:
You can't put everything in the report.

[00:10:59] Speaker 03:
an opportunity to reply?

[00:11:01] Speaker 01:
No, Your Honor.

[00:11:02] Speaker 03:
Do you disagree with that?

[00:11:04] Speaker 01:
Yes, and I'd like to explain, Your Honor.

[00:11:06] Speaker 01:
You do.

[00:11:07] Speaker 01:
So what happens is the reply goes in with this 60-page declaration with all this testimony we've never seen before.

[00:11:14] Speaker 01:
Mr. Baxter hasn't even been identified, hired before we filed our opposition, but not identified.

[00:11:19] Speaker 01:
We get this report, we get to cross-examine, and then we get to file five pages

[00:11:25] Speaker 01:
of observations.

[00:11:26] Speaker 03:
An observation is a one- It was, Your Honor.

[00:11:33] Speaker 01:
It was limited to five pages of single paragraph comments.

[00:11:37] Speaker 00:
I think the question is directed to the deposition of Mr. Baxter.

[00:11:42] Speaker 00:
You had hours of deposition of him, right?

[00:11:45] Speaker 01:
We had the opportunity to depose him.

[00:11:47] Speaker 01:
We did not have the opportunity to make any argument or submit anything.

[00:11:51] Speaker 00:
But you did depose him, right?

[00:11:52] Speaker 01:
We deposed him.

[00:11:53] Speaker 00:
And you didn't even use up your full time, if I recall correctly.

[00:11:57] Speaker 01:
That may be, Your Honor, but that's not the point.

[00:11:59] Speaker 01:
We didn't have the opportunity to submit argument.

[00:12:03] Speaker 01:
Did you ask for it?

[00:12:05] Speaker 01:
It's not allowed for in the rules.

[00:12:07] Speaker 01:
You could ask for a waiver of the rules, right?

[00:12:09] Speaker 01:
We weren't on notice of that because what the patent office says is we are not going to parse a reply.

[00:12:15] Speaker 00:
The rules are pretty clear as to how it works.

[00:12:20] Speaker 00:
You can depose them, you can file the observations.

[00:12:22] Speaker 00:
If you thought that filing the observations wasn't sufficient, why didn't you raise that before the patent office?

[00:12:27] Speaker 01:
It would have been sufficient had the patent office not considered new material, but the patent office did.

[00:12:33] Speaker 01:
So had they complied with the regulations, had they complied with the trial office guidelines, had they complied with their own order that they would not parse this declaration to see what's new and what's not,

[00:12:44] Speaker 00:
Do you think that's for the benefit of the patentee or is that just a housekeeping role?

[00:12:50] Speaker 01:
I think it's for the benefit of the patentee because there is no provision for the patentee, well and housekeeping, but there's no provision allowing a patentee to submit new evidence in response to this

[00:13:01] Speaker 01:
initial sixty-page report we've never seen before.

[00:13:04] Speaker 01:
I mean, we would have liked to, but it's not allowed.

[00:13:06] Speaker 01:
There's no provision for us to even argue the credibility of the witness.

[00:13:10] Speaker 03:
Well, after you deposed the witness and you filed five pages with the Office of Non-Argument, was there an opportunity to point out what you're telling us now?

[00:13:26] Speaker 01:
No, really, there's only the opportunity to provide... What was in the five pages?

[00:13:30] Speaker 01:
A citation to the deposition and a brief statement of what it's relevant to.

[00:13:35] Speaker 00:
Didn't you have oral argument?

[00:13:37] Speaker 01:
You're not permitted to raise anything that's not in the papers before of oral argument, so no.

[00:13:41] Speaker 00:
What does that mean?

[00:13:42] Speaker 00:
Does that mean that you couldn't at the oral argument comment on the Baxter testimony and say it was inadequate?

[00:13:50] Speaker 01:
To a very limited degree we could, and you can't even have a slide on it, because they will bump the slides if it's not identical to something that's filed in the proceeding already.

[00:14:00] Speaker 00:
So you could, at the oral argument, say the Baxter testimony doesn't do the trick.

[00:14:04] Speaker 00:
Here's what we discovered in the course of the deposit.

[00:14:09] Speaker 01:
I could do that to a degree.

[00:14:10] Speaker 01:
I could do that to the extent it's already in the record.

[00:14:13] Speaker 01:
I could have certainly not submit any responsive evidence.

[00:14:18] Speaker 04:
And just to be clear, you didn't file a motion for permission to file responsive evidence with whatever rule waiver that might have required.

[00:14:26] Speaker 01:
Again, we believe that it should have been excluded in the first place, and I don't think that there's any regulation that permits that type of a filing.

[00:14:35] Speaker 04:
I'm sorry.

[00:14:36] Speaker 04:
I think I asked you whether you submitted a motion asking for permission to do that.

[00:14:42] Speaker 04:
Your answer is no.

[00:14:43] Speaker 01:
There was no motion of that type made, Your Honor.

[00:14:46] Speaker 01:
And again, I believe the reason for that is because we were assuming that the rules would be followed.

[00:14:53] Speaker 01:
But again, back to the point.

[00:14:55] Speaker 01:
there's not substantial evidence in the petition or with Mr. Baxter I respectfully submit and to come in and I'm sorry I think with that I should probably include I've got about 30 seconds left.

[00:15:27] Speaker 05:
Good morning and may it please the court.

[00:15:31] Speaker 05:
I will be speaking today about both Belden's appeal and Burkett's cross-appeal.

[00:15:37] Speaker 05:
With regards to Belden's appeal, there are two reasons why the board's invalidity determinations should be affirmed.

[00:15:44] Speaker 05:
First, substantial evidence supports the board's finding that it was obvious to use the aligning board five of JP910 to prevent twisting

[00:15:56] Speaker 05:
prevent twisting motion of the core.

[00:15:59] Speaker 05:
That is the only limitation of claim one of the 503 patent that is in dispute and that is argued is not in the prior art.

[00:16:07] Speaker 05:
It's preventing twisting motion of the core.

[00:16:11] Speaker 04:
Secondly... And the obviousness question itself is not a factual question for which we would use the word finding.

[00:16:17] Speaker 04:
What is the determinative factual issue that you think leads to the legal conclusion of obviousness?

[00:16:24] Speaker 05:
that JP910 suggests using board five to prevent twisting of the core.

[00:16:36] Speaker 04:
And that's essentially by shaping that center hole in such a way as to hug the core.

[00:16:42] Speaker 04:
Is that what we're talking about?

[00:16:44] Speaker 05:
Correct.

[00:16:44] Speaker 05:
So JP910 has, and it is shown, it has what is called a wire splitting board five.

[00:16:51] Speaker 05:
That is shown in JP 910, Figure 1.

[00:16:54] Speaker 05:
It shows a wire splitting board 5 through which the four conductors, 4A, 4B, 4C, and D, there are four holes at the corners through which those four conductors travel.

[00:17:10] Speaker 05:
And in the center, there is also a hole through which thread-like object 1 ultimately passes.

[00:17:18] Speaker 05:
The board found

[00:17:21] Speaker 05:
that JP910, quote, viewed as a whole, teaches the importance of avoiding any misplacement of the conductors in relation to the core.

[00:17:34] Speaker 05:
That's at A26.

[00:17:38] Speaker 05:
JP910 teaches and discloses that the core must be shaped so that its, quote, grooves are placed so that their bottom portion aligns to the vertices of a square.

[00:17:51] Speaker 05:
That is at A215 paragraph 3.

[00:17:54] Speaker 05:
And so the board, board 5, not the board, board 5 must have the four holes that are placed at the intervals of 90 degrees through which the conductors pass.

[00:18:09] Speaker 05:
And it also has a hole in the middle through which the thread-like object or the core passes.

[00:18:15] Speaker 05:
And the board found as factual matter that

[00:18:19] Speaker 05:
to one of ordinary skill in the art based on the reference itself, that the hole, which is simply a hole, it's a hollow space, it can be shaped any way possible, it doesn't necessarily have to be round, it's a hole.

[00:18:35] Speaker 05:
The board found that it would have been obvious in light of the teachings of JP910 to use that hole

[00:18:44] Speaker 05:
to prevent the twisting motion of the core.

[00:18:48] Speaker 04:
Just so I understand it, which is where I started, the point is that that hole should look like a cookie cutter holding the cookie with the core outline, the cross section of the core.

[00:19:02] Speaker 04:
forming this shape of a circle with symbols in it.

[00:19:07] Speaker 04:
And the way to prevent, to use board five to prevent the twisting is to have that hole hug that shape the way a cookie cutter hugs the shape of a cookie you're making like a Christmas tree or something.

[00:19:19] Speaker 05:
Right, whatever size, the core can be any particular shape.

[00:19:25] Speaker 05:
I mean, in this particular embodiment, in the patent, it's showing the shape of the core that has the little recesses in it for purposes of

[00:19:38] Speaker 05:
of holding the the conductor yet here you're right that that's that that would be you know roughly the shape of the of the uh... of the hole in the die five to to uh... prevent that core from twisting

[00:19:54] Speaker 04:
And that finding rests on Mr. Baxter's declaration, ultimately, that there is a twisting problem to be solved?

[00:20:06] Speaker 05:
No.

[00:20:07] Speaker 05:
No.

[00:20:07] Speaker 05:
I would respectfully submit that that finding does not rest on Baxter at all.

[00:20:13] Speaker 05:
That finding rests on the teaching of JP 910 itself.

[00:20:21] Speaker 05:
And it also rests, which Mr.

[00:20:24] Speaker 05:
Larry did not touch upon that the 503 patent here specifically says that backtwist, the 503 patent, the patent in suit here in the specification when it is talking about the embodiment that is the method of claim one, the 503 patent specifically says that backtwist, quote, is inherent in bunching operations.

[00:20:54] Speaker 05:
The bunching operation is the portion of the process that happens at the SC strander in the case of the 910 patent or in the case of the

[00:21:09] Speaker 05:
503 pattern, when all of the constituent parts are finally joined together, the 503 pattern tells us that when that happens, and it's in the prior art, that this phenomenon called backtwist occurs, which propagates back through the process, including through the core.

[00:21:29] Speaker 05:
So in the prior art, it's telling us that there's a problem

[00:21:33] Speaker 05:
of this back twisting and that's the whole purpose of the five oh three patterns to of prevent twisting including back-twisting so i would say that it's not in the in the back to declaration it can in the patent and it is also it is also in the back to declaration also explain the jp nine ten is concerned with alignment that is that is correct that the back stir uh...

[00:21:59] Speaker 05:
paragraph 118 and 121 at A696 through 697, 698.

[00:22:06] Speaker 05:
And the Baxter Declaration does also explain that the only way to accomplish the alignment at die 105 is to prevent the twisting motion of the thread-like object 1.

[00:22:20] Speaker 05:
Yes, Baxter does say that.

[00:22:24] Speaker 00:
And unless there are further questions about claims one and four, could you talk about claims five and six?

[00:22:31] Speaker 00:
And I look at the board's decision, and it seems to me that it gives three reasons as to why claims five and six are obvious.

[00:22:41] Speaker 00:
One, that if you use twisted pairs, you have a circularity problem, that there wouldn't be any

[00:22:49] Speaker 00:
uh... we've been jacked with appears were insulated third the uh... yes the latter point seems to me in the court declaration in the court declaration correct that's that's correct uh...

[00:23:18] Speaker 05:
i'll take your i'll take those in in order uh... so the uh... your your your honor's correct that the uh... the board stated uh... uh... talked about the the board stated that that burke tech is not responded to balance argument that modifying cable uh... g p nine ten to clue into include twisted pairs would destroy the circular shape of g p nine tens quad wire

[00:23:49] Speaker 05:
the the conductor you know i don't think circularity uh... i don't necessarily think circularity is important but it is if it is important the the circularity of the uh... can make the the canadian oh four six and circularity of limitation of five oh three

[00:24:20] Speaker 00:
One might ask, why are we talking about that?

[00:24:24] Speaker 05:
I'm just trying to respond to your question, but it is not a limitation of any of the claims of the 503 patent.

[00:24:32] Speaker 05:
But moreover, the reference that we're arguing should be combined with JP910, that is Canadian 046, is the exact same

[00:24:50] Speaker 05:
cable configuration as in the 503 patent, it is four twisted pairs that are separated by a cross-shaped separator.

[00:24:59] Speaker 05:
And so each of the four twisted pairs reside within the recesses of that cross-shaped separator.

[00:25:06] Speaker 03:
So five and six have specific additional limitations.

[00:25:10] Speaker 03:
Don't you have to concentrate on those and tell us why?

[00:25:15] Speaker 03:
If the standard, if our standard is substantial evidence,

[00:25:20] Speaker 03:
despite the fact, as I understand it, that the board's decision is made on a preponderance, then I think for five and six, it isn't the general cross with a notches or holes, but the specific differences that the board found were sufficiently significant to hold that there wasn't a preponderance of evidence.

[00:25:46] Speaker 05:
Right.

[00:25:49] Speaker 05:
The claims five and six require that the transmission media of claim one specifically be twisted pair conductors.

[00:26:02] Speaker 05:
In claim five it requires a plurality of twisted pairs as the transmission media of claim one.

[00:26:11] Speaker 05:
In claim six requires that it specifically

[00:26:15] Speaker 05:
the four twisted pairs.

[00:26:17] Speaker 03:
And I think you agreed that those specific limitations were not in either the Japanese or the Canadian reference.

[00:26:25] Speaker 03:
So why, nonetheless, was the board wrong?

[00:26:29] Speaker 05:
That specific configuration isn't Canadian 046.

[00:26:35] Speaker 03:
Canadian 046 shows... Well, that's a disputed fact, is it not?

[00:26:40] Speaker 05:
uh... i'd i'd i don't think that's actually disputed fact i think the party's agree on that i think the bar position is is that the the the board uh... misapplied the law uh... it's it's our position of the board this applied the law with respect to claim five and six because what the board did was it looked at

[00:27:05] Speaker 05:
JP-910 and JP-910 refers to what it calls a conventional method for manufacturing cable and JP-910 talks about the cable that is manufactured by that process as being by the JP-910 process as being unconventional or something that's different from the conventional process.

[00:27:35] Speaker 03:
held that it was not even obvious.

[00:27:41] Speaker 00:
Could you come back and maybe tell us, address the reasoning as to why it wasn't obvious to combine the Canadian patent with the Japanese patent in this respect.

[00:27:51] Speaker 00:
You addressed the first one, the circularity.

[00:27:53] Speaker 00:
What about the second one, about the motivation of the Japanese

[00:27:59] Speaker 00:
uh... the second one being uh... the uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh... uh...

[00:28:29] Speaker 05:
has the twisted pairs which in and of themselves are insulated and then it has, and then it is jacketed.

[00:28:42] Speaker 05:
So there's no redundancy.

[00:28:47] Speaker 05:
The 503 patent is telling us that it's, in the case of the, that it's, and the same for the 046 patent, it is

[00:28:58] Speaker 05:
in the prior art to both insulate the individual conductors and to jacket them.

[00:29:06] Speaker 05:
That is in the prior art.

[00:29:08] Speaker 05:
There is no redundancy between having a jacket.

[00:29:10] Speaker 05:
Jacket them together with the core.

[00:29:13] Speaker 05:
Exactly.

[00:29:14] Speaker 05:
So you have the core going through the center and then you have the individually insulated conductors around it and then you have a jacket around it to hold the whole thing together.

[00:29:24] Speaker 05:
and in some cases, so that's the purpose of the jacket.

[00:29:27] Speaker 00:
And what they said was, well having insulated the twisted pairs, there wouldn't be any motivation to jacket it, which seems to me not to make any sense.

[00:29:36] Speaker 05:
I agree that it doesn't make any sense, and it's contrary to what's in the priorities, contrary to the 503 patent itself.

[00:29:45] Speaker 00:
What about the third reason?

[00:29:50] Speaker 05:
So the third, the

[00:29:53] Speaker 00:
our position is that in terms of the legal error that that the the board did not have a legal error but just they came up with this item which isn't in the Clark declaration as a reason for not doing this and isn't that just an additional step that you could or could not take with respect to producing a cable of this sort?

[00:30:20] Speaker 05:
Yeah, well, first of all, the SC stranding is not part of the claims of the 503 patent.

[00:30:26] Speaker 05:
The claims don't require any particular type of twisting, and SC stranding is just a different way to twist in contrast to or slightly different than helically twisting.

[00:30:40] Speaker 05:
So it's not even part of the claims how the twisting is done.

[00:30:44] Speaker 05:
The claims simply

[00:30:45] Speaker 05:
I require that that there be a prevention of twisting irrespective of the type of twisting that that might occur.

[00:30:53] Speaker 03:
Okay, I will say your rebuttal time on the cross appeal.

[00:30:57] Speaker 03:
Let's hear from Mr. Lowry on the cross appeal.

[00:30:59] Speaker 01:
Thank you.

[00:31:04] Speaker 01:
Thank you, Your Honor.

[00:31:05] Speaker 04:
uh... i'd like i guess to begin on claims five and six uh... i think this is also connected relationship i took it that the other side basic argument against what the board did on five and six was that the board didn't considered independent

[00:31:33] Speaker 04:
of what it had already found about JP-910, namely the teaching of the suggestion of the need for alignment and the suggestion of using the plate to prevent twisting in order to improve the possibility of alignment.

[00:31:56] Speaker 04:
the core of the board's ruling on claims one through four and if you take that teaching and apply it to five and six you get to the same place and the only reason the board didn't was that it forgot

[00:32:12] Speaker 04:
about the independent force of the teaching about the alignment twisting connection, and instead looked at everything in the embodiment in 910, the SC Strander.

[00:32:25] Speaker 04:
But that's an incorrect obviousness analysis.

[00:32:28] Speaker 04:
You have to take each teaching of the 910 for what it's worth, and they already established that for claims one through four.

[00:32:40] Speaker 04:
And that equally applies, of course, no matter what you're assembling, whether it's twisted pairs or anything else.

[00:32:46] Speaker 04:
The insulation has nothing to do with whether there's an interest in alignment and preventing twisting.

[00:32:52] Speaker 01:
So I'm not sure.

[00:32:56] Speaker 01:
That was a long question, so I'm not sure I've got the nub.

[00:32:58] Speaker 01:
But I think so, Your Honor.

[00:33:00] Speaker 01:
And I think what the board found was that they hadn't established even a prima facie cape, first,

[00:33:07] Speaker 01:
They hadn't even established a prima facie case of reason to combine.

[00:33:11] Speaker 01:
What the board did is it said in the context of JP910, we have this teaching about quads, right?

[00:33:18] Speaker 01:
And twisted pairs and quads, these are the transmission medias as I talked about up front, right?

[00:33:23] Speaker 01:
So when we talk about combining one reference where you're talking essentially about making a cable as the Canadian one is, similar to the Clark, I mean they're both

[00:33:34] Speaker 01:
multiple transmission media with a separator, they said, you wouldn't look over here to a method of making the twisted pairs.

[00:33:41] Speaker 00:
Well, the twisted pairs were absolutely conventional, right?

[00:33:44] Speaker 00:
So we're quads.

[00:33:46] Speaker 00:
Right.

[00:33:46] Speaker 00:
And JP... So the board, am I correct, that the board gave three reasons as to why you wouldn't apply the JP-910 to twisted pairs?

[00:33:57] Speaker 00:
Those are the three reasons that I went over with the opposing council.

[00:34:03] Speaker 00:
Am I correct about that?

[00:34:04] Speaker 01:
I think, Your Honor, I would not characterize it in the same way, respectfully.

[00:34:10] Speaker 01:
The first was that the board said there's no prima facie case on why to do it.

[00:34:14] Speaker 01:
So one doesn't start the analysis with why wouldn't you.

[00:34:17] Speaker 01:
One starts with what common sense reason or whatever is there on the board.

[00:34:21] Speaker 00:
The prima facie case is that it was absolutely conventional to have twisted pairs as well as quads, and that it would have naturally occurred to somebody to substitute one for the other.

[00:34:32] Speaker 01:
That may be, but they wouldn't do that with a cable.

[00:34:35] Speaker 01:
So it's like what the combination is doing is saying, let's take a twisted pair, and for each line of the twisted pair, let's put a twisted pair in it.

[00:34:44] Speaker 01:
It doesn't make sense, which is what the board found.

[00:34:46] Speaker 00:
I don't understand what you're saying.

[00:34:48] Speaker 01:
So if one opens up a wall in a house and looks at the telephone line, there's usually two.

[00:34:54] Speaker 01:
Two twisted pairs.

[00:34:55] Speaker 01:
Each is the transmission media.

[00:34:57] Speaker 01:
It's not the individual copper wire.

[00:34:58] Speaker 01:
Each twisted pair is the transmission media.

[00:35:01] Speaker 01:
and you open it up and they're different colors so that you can tell which line is which.

[00:35:05] Speaker 01:
So the cable is jacketed around the transmission media, multiple ones, multiple twisted pairs could be quads.

[00:35:12] Speaker 01:
It's not conventional, it's not used very much anymore, but quads and twisted pairs are equivalent.

[00:35:17] Speaker 01:
So the cable is multiple transmission media of twisted pairs, and what the combination suggests

[00:35:24] Speaker 01:
is we're going to take a twisted pair and put a twisted pair in it, or we're going to take a quad and put a twisted pair in each of the elements of the quad.

[00:35:31] Speaker 01:
And it's talking about apples and oranges.

[00:35:33] Speaker 01:
Cables are different than quads and twisted pairs.

[00:35:37] Speaker 01:
And that's what the board found, in that one would not simply look at how you make a twisted pair or how you make a quad and apply that.

[00:35:45] Speaker 01:
And there's no reason articulated, as the board found, to make a prima facie case to do so.

[00:35:50] Speaker 01:
I mean, there's nothing in any of this art in front

[00:35:53] Speaker 01:
in front of the board about how you make a cable.

[00:35:55] Speaker 01:
I mean, a cable with multiple transmission media as opposed to how you make a twisted pair or a quad.

[00:36:00] Speaker 01:
I mean, Japanese 910 is quite explicit.

[00:36:02] Speaker 01:
We're talking about twisted pairs or quads is what it actually says.

[00:36:06] Speaker 01:
And so the first point would be no prima facie case.

[00:36:09] Speaker 01:
The second point on circularity, it wouldn't be

[00:36:15] Speaker 01:
held together similar to the already jacket it's like we're talking about insulating the individual wire here whether it's not a claim it comes from mine ability what uh... so in order for the obvious miss uh... rejection you need to look at the references you have as a whole you don't pick apart references under this court's precedent you look at it as a whole and you say would one combine these two things and the answer is

[00:36:43] Speaker 04:
Let me, I guess, disagree with that.

[00:36:45] Speaker 04:
It seems to me that's not what the rule against picking apart references means.

[00:36:52] Speaker 04:
The rule against picking apart references is about making sure you're accounting for everything that the reference teaches.

[00:37:00] Speaker 04:
And if it teaches four independent things,

[00:37:04] Speaker 04:
Each of those teachings counts unless it teaches that these four things really aren't independent.

[00:37:11] Speaker 04:
That's why I tried to say how I was thinking about this in my opening question five and six.

[00:37:17] Speaker 04:
It seemed to me that what the board was doing here was saying

[00:37:20] Speaker 04:
We already found that 910, Japanese 910, teaches about the alignment, twisting connection.

[00:37:27] Speaker 04:
Now we're not going to take that teaching for its own independent force.

[00:37:33] Speaker 04:
We're going to tie it to the particulars that 910 talks about, about uninsulated wires and quads and other things.

[00:37:42] Speaker 04:
And I don't understand what in 910

[00:37:45] Speaker 04:
forces you to deny the independent force of the alignment twist connection, which, if you take it independently, seems to me to lead to five and six having the same problem as one through four.

[00:37:59] Speaker 01:
The problem, Your Honor, is that the references again are apples and oranges.

[00:38:04] Speaker 01:
One is with respect to twisted pairs and the technology to make those, and the board said it's not so simple as applying it across

[00:38:12] Speaker 01:
to or quads as applying it to these methods of manufacture of cable.

[00:38:17] Speaker 04:
There's actually... Is the Canadian patent one that describes taking a plurality of twisted pairs and putting them together and maybe helically or otherwise combining them and then wrapping them?

[00:38:36] Speaker 01:
I don't believe that there's a method of manufacture described in that.

[00:38:40] Speaker 01:
It describes a resulting cable, and I know it doesn't have SC stranding, which, do you understand?

[00:38:45] Speaker 04:
No, but it has a plurality of twisted pairs being put together with a separator of one sort or another, and as it's being put together, is there turning going on or not in the Canadian?

[00:39:00] Speaker 01:
I believe that it is helically twisted, but it's unclear, Your Honor, how it's made, because

[00:39:05] Speaker 04:
I believe that, if I recall correctly, that center helical piece... Let me stipulate that it doesn't talk about the manufacturing process.

[00:39:14] Speaker 04:
I took it that their argument, and at least one sentence in the institution decision, said it would have been obvious to a person of skill in the art, starting with the Canadian product and thinking, how am I going to make this,

[00:39:31] Speaker 04:
to address the problem of alignment with the separator in exactly the way that the Japanese 910 patent teaches.

[00:39:42] Speaker 04:
I took it that that was the case for obviousness of the combination, which starts with the Canadian and then uses the Japanese in order to establish a manufacturing process for the results shown in the Canadian.

[00:39:57] Speaker 01:
I think actually it kind of

[00:39:58] Speaker 01:
the analysis ran both directions?

[00:40:01] Speaker 04:
I agree it ran both directions, but that was part of it.

[00:40:03] Speaker 04:
And the other direction is harder for the other side.

[00:40:06] Speaker 01:
Right.

[00:40:06] Speaker 01:
And then if one's looking at the direction of, I mean, there was actually no evidence about how one would go about make, other than the 503 patent, which is the patent, about how one would make the cable described in a Canadian one, one could, for example, and in fact, your honor,

[00:40:23] Speaker 01:
There were cables with multiple things in them before, and there were methods of addressing that.

[00:40:31] Speaker 01:
For example, one of the prior art things I believe is you kind of build in a back twist all the way back when you're making it.

[00:40:39] Speaker 01:
So rather than stop it from twisting, you kind of build your thing so that it allows for the twist already.

[00:40:46] Speaker 01:
That's why these things are so dangerous in the absence of actual prior art and evidence, because there's a lot going on in these things.

[00:40:52] Speaker 01:
that's not apparent.

[00:40:53] Speaker 01:
I mean, nobody's describing it.

[00:40:55] Speaker 01:
Nobody's actually said somebody actually did it this way.

[00:40:58] Speaker 01:
This cable was made, if that Canadian cable was made before, there's no evidence as to how it was actually made.

[00:41:02] Speaker 01:
There's no evidence actually that you could even make that cable in this way, given the materials.

[00:41:07] Speaker 01:
I don't know.

[00:41:08] Speaker 01:
I haven't looked at that.

[00:41:09] Speaker 01:
But what the board said was you would not take a reference on how to make twisted pairs and simply say, OK, I'm going to use four quads in the Japanese patent case, and I'm going to use that to make a table.

[00:41:24] Speaker 01:
because it's different.

[00:41:25] Speaker 01:
It's a different thing.

[00:41:26] Speaker 01:
It's different speeds.

[00:41:27] Speaker 01:
You don't have bare wires coming in.

[00:41:29] Speaker 01:
You have twisted pairs coming in.

[00:41:31] Speaker 01:
You don't have... All the components are actually different.

[00:41:35] Speaker 01:
The jacketing is different, right?

[00:41:36] Speaker 01:
I mean, the JP910, when it puts a jacketing on, it's putting on something very tight, which is different than the jacket you would find on an outside table.

[00:41:45] Speaker 00:
But the suggestion that there was no motivation to jacket is ridiculous, right?

[00:41:50] Speaker 01:
No, I think what the board is saying is that

[00:41:53] Speaker 01:
These things are different and they wouldn't be combined.

[00:41:56] Speaker 01:
We don't think that they should be combined.

[00:41:57] Speaker 01:
We find that they shouldn't be.

[00:42:01] Speaker 03:
Okay.

[00:42:01] Speaker 03:
Thank you.

[00:42:03] Speaker 03:
Let's hear a couple minutes of rebuttal and then we'll hear from the office.

[00:42:12] Speaker 05:
Unless your honors have questions, I have nothing further.

[00:42:18] Speaker 05:
Okay.

[00:42:18] Speaker 03:
Thank you.

[00:42:24] Speaker 03:
Ms.

[00:42:25] Speaker 03:
Lynch, representing the Director.

[00:42:28] Speaker 02:
Thank you, Your Honor.

[00:42:29] Speaker 02:
It may please the Court.

[00:42:31] Speaker 02:
I just want to talk about two of the procedural issues very briefly.

[00:42:34] Speaker 02:
The first is the Board's denial of the motion to exclude the Baxter Declaration.

[00:42:41] Speaker 02:
And Belden says that that was an abuse of discretion.

[00:42:44] Speaker 02:
But to the contrary, the Board followed the Office's regulations, which state that a reply may only respond to arguments raised in the corresponding opposition

[00:42:54] Speaker 02:
or patented response.

[00:42:55] Speaker 03:
I think you may have to explain to us why we should support a regulation if we think that for some reason or other it's deficient in due process or whatever it is the principles to support the credibility and strength of this new board procedure.

[00:43:20] Speaker 02:
If you, 316, the statute specifically states that the petitioner is provided with at least one opportunity to file written comments within a time period established by the director.

[00:43:33] Speaker 02:
And so pursuant to that statute, the board has allowed the petitioner to put in a reply.

[00:43:39] Speaker 02:
In this case, the petitioner put in a reply with the Baxter Declaration.

[00:43:43] Speaker 02:
And Belden said, well, no, that's not a fair reply because Mr. Baxter didn't put in a declaration with the original petition.

[00:43:51] Speaker 03:
They said it was inadequate because they were only allowed five pages and had no opportunity to argue.

[00:43:57] Speaker 00:
Yeah, I think that's really the heart of the problem.

[00:44:00] Speaker 00:
They're saying that your limit on the observations, that they do get the deposition of Baxter, which they took advantage of and didn't use the full time.

[00:44:09] Speaker 00:
But what they're saying is the limit on the nature of the observations is inadequate.

[00:44:14] Speaker 00:
And what is your answer to that?

[00:44:16] Speaker 00:
Is it that they can make the argument at the overall argument?

[00:44:19] Speaker 00:
What's the point?

[00:44:22] Speaker 02:
A couple of things, Your Honor.

[00:44:23] Speaker 02:
First of all, they could have asked for more pages of observations if they had chosen to.

[00:44:27] Speaker 02:
They could have asked the board to allow them to do a surreply.

[00:44:31] Speaker 02:
They also chose not to partake of that.

[00:44:33] Speaker 03:
I've gotten such requests thus far have never been granted.

[00:44:36] Speaker 03:
I think experienced practitioners perhaps know that there's no point in asking for something you're not going to get.

[00:44:44] Speaker 02:
The board has actually granted surreplies in a few situations.

[00:44:49] Speaker 02:
And they're complaining without having asked.

[00:44:53] Speaker 02:
So we don't know whether the board would have granted it in this case, but they certainly didn't ask for it.

[00:44:57] Speaker 03:
Are you complaining about a rule which says this is it?

[00:45:02] Speaker 02:
We're talking about the observations which were originally five pages and they could have asked for additional pages or they could have asked for a reply.

[00:45:11] Speaker 02:
They did need either of those.

[00:45:12] Speaker 02:
But what they did do was they did take the deposition.

[00:45:16] Speaker 04:
They did file some observations and they had an opportunity at the oral hearing to say what they wanted to say.

[00:45:32] Speaker 04:
the bar that requesting permission to file us a reply or requesting more pages or making any of these requests is possible or is that just something that they would have to why not unless something is forbidden?

[00:45:54] Speaker 02:
I don't think that there's anything specifically in the trial practice guide that says that but certainly you know the board can waive

[00:46:02] Speaker 02:
its rules and other people have asked for it so they could have asked for it.

[00:46:07] Speaker 04:
Can I ask you a question about the trial practice guide?

[00:46:10] Speaker 04:
I take it the primary position is it's just not binding so roughly speaking who cares what it says but would you agree that the portion of the trial practice guide that seems to say that new evidence that could have been presented in a prior filing

[00:46:32] Speaker 04:
inappropriate for a reply would mean that Baxter's declaration under the guide, if it were binding, was inappropriate.

[00:46:43] Speaker 04:
He could have presented all of that.

[00:46:46] Speaker 02:
Well, actually if you look at the motion to exclude the Baxter Declaration and the opposition to it,

[00:46:53] Speaker 02:
put in.

[00:46:54] Speaker 02:
Burtek actually went paragraph by paragraph explaining how the Baxter Declaration responded to the Clark Declaration.

[00:47:01] Speaker 04:
Let me just try to be precise.

[00:47:05] Speaker 04:
I'm not sure that this matters because as far as I can tell, the guide simply isn't binding.

[00:47:10] Speaker 04:
Let me stipulate for purposes of this question that everything in Baxter was materially responsive to Clark and therefore satisfied the regulations.

[00:47:20] Speaker 04:
I'm talking only about the way this guide is written.

[00:47:24] Speaker 04:
The guide seems to say that evidence on reply is inappropriate if it could have been presented earlier.

[00:47:34] Speaker 04:
When in the world would that not be true?

[00:47:38] Speaker 02:
I think, but what the board also says, and maybe this isn't in the trial practice guide, what the board also says is the petitioner can't anticipate every argument against them.

[00:47:48] Speaker 02:
So obviously you're right.

[00:47:51] Speaker 00:
But then petitions would be... They couldn't have provided a response to Clark earlier.

[00:47:57] Speaker 00:
They could only respond to Clark once Clark put in his declaration.

[00:48:00] Speaker 02:
Now, maybe they could have guessed those things ahead of time and put them in, but that's not the way it works.

[00:48:06] Speaker 04:
Well, they were challenging claim five and claim six, and they needed to say, here is why a relevant skilled artisan in whatever the year is would have been led to that.

[00:48:17] Speaker 04:
It would have been starting with the very common phenomenon of twisted pairs being

[00:48:22] Speaker 04:
grouped together and jacketed with a twist in them, and there's an alignment problem for that.

[00:48:28] Speaker 04:
I mean, it is, after all, the petitioner's burden to make out the facts necessary to support the inferences that lead to the conclusion that by a preponderance that a relevant skilled artisan would have been motivated to do this.

[00:48:45] Speaker 02:
The petitioner's burden to meet what the statute says and what the regulations say and to convince the board that there's a reasonable probability that at least one of the challenge claims would be unpatentable.

[00:48:56] Speaker 04:
No, it's the petitioner's burden, isn't it, in order to come away from the board proceeding.

[00:49:02] Speaker 04:
Oh, at the end.

[00:49:03] Speaker 04:
Yes, with a success to establish invalidity of the claims by a preponderance of the evidence.

[00:49:13] Speaker 04:
Correct.

[00:49:14] Speaker 02:
But I still think this comes back to the point that the board is policing these replies.

[00:49:20] Speaker 02:
to make sure that they are responsive to the opposition or the patent owner.

[00:49:26] Speaker 00:
If there is new stuff that is raised in a reply, for example, Baxter responding to Clark, I must say I don't quite understand why the observations are so limited and why the patentee is not permitted to make some sort of argument in connection

[00:49:45] Speaker 00:
with the deposition that it's taken in this case of Baxter.

[00:49:49] Speaker 00:
I mean, any consideration being given to loosening that limitation on the observations?

[00:49:56] Speaker 02:
I don't think that that's in there are proposed, there's a proposed rulemaking right now.

[00:50:01] Speaker 02:
I don't think that that's one of the provisions in it.

[00:50:04] Speaker 02:
But certainly, you know, they can put things in their observations and then they can continue to argue them at the oral hearing.

[00:50:11] Speaker 00:
Yeah, but I don't understand why you don't allow them a little latitude in terms of argument in the observations.

[00:50:18] Speaker 00:
That doesn't seem to me that that would louse up the schedule here.

[00:50:23] Speaker 02:
Well, that's the way the system has been set up, and it's supposed to be narrowing the issues.

[00:50:29] Speaker 02:
And like I said, if they needed more pages for observations, they could have asked for them.

[00:50:33] Speaker 02:
They could have argued at the hearing.

[00:50:35] Speaker 02:
they could have asked for a reply.

[00:50:37] Speaker 03:
You can't be saying that this is how it is.

[00:50:40] Speaker 03:
I think our observation of the board's activities and the director's response to various issues as they are resolved is to assure

[00:50:51] Speaker 03:
as well as the board can, that the requirements of due process are met so that the purposes of the statute can be satisfied.

[00:51:01] Speaker 03:
But I hear you saying, no, this is how it is.

[00:51:04] Speaker 02:
That ends it.

[00:51:07] Speaker 02:
I don't mean to be saying that, Your Honor.

[00:51:08] Speaker 02:
What I'm saying is I think in this case, there was nothing brand new in the board decision.

[00:51:14] Speaker 02:
The board relied on the references and the Baxter Declaration.

[00:51:19] Speaker 02:
Belden had full notice.

[00:51:20] Speaker 03:
But we're not asking you, the director, to defend the decision.

[00:51:24] Speaker 03:
I just understood that you wanted to explain to us the procedures that were followed and why there was no flaw in the procedures, whereas we have been told that perhaps there was in this limitation on argument after the reply, if the reply was provided.

[00:51:49] Speaker 03:
and presented by the board.

[00:51:50] Speaker 03:
The board had to read it in order to decide that it should be cut back.

[00:51:55] Speaker 03:
So there was certainly an opportunity for influence from the reply.

[00:52:02] Speaker 02:
Correct, Your Honor.

[00:52:02] Speaker 02:
But we think that that's how these trial proceedings are supposed to work.

[00:52:07] Speaker 02:
The institution decision should be different from the final written decision because of everything that happens in between.

[00:52:12] Speaker 02:
And we also think Bildon had full opportunity to reply to the Baxter Declaration.

[00:52:19] Speaker 02:
The court has nothing further.

[00:52:21] Speaker 02:
I apologize for going over my time.

[00:52:23] Speaker 03:
Thank you.

[00:52:26] Speaker 03:
The case is taken under submission.

[00:52:28] Speaker 03:
That concludes the arguments for this morning.